Dissenting Justices back gerrymandering in defiance of Constitution

Ohio’s obviously gerrymandered district maps were A-OK according to Ohio Supreme Court Justices Pat DeWine, Sharon Kennedy and Pat Fischer in their dissenting opinions. Luckily for Ohio, there was a majority that honored the new anti-gerrymandering rules and struck down the maps, but these three failed our state Constitution, our representative democracy and the people of Ohio.

A conflict of interest

Justice Pat DeWine is the son of Governor Mike DeWine, who is a member of the Ohio Redistricting Commission. Governor DeWine was a named respondent in both sets of lawsuits, since he was in map negotiations, voted to approve the Statehouse gerrymanders, participated in hearings on congressional mapmaking, signed the first congressional gerrymander SB258 into law and voted to approve the revised congressional gerrymander.

Ohio Code of Judicial Conduct Rule 2.11(2)(a) says:

“A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including … the following circumstances: The judge knows that … a person within the third degree of relationship … is … a party to the proceeding”

There is a conflict of interest for Pat to judge a case where his father was directly involved, most especially in the state legislative districts and the revised Congressional map. There is a strong case for Pat to recuse himself, but he judged the cases anyway, and ultimately aligned himself with his father’s approval of all of the maps.

In a Supreme Court hearing scheduled for 3/1/22, Justice DeWine has recused himself from deciding if his father would be held in contempt, after the commission failed to adopt new legislative maps by the court ordered deadline of 2/17/22. However, Justice DeWine continues to preside over the redistricting cases. Justices Kennedy and Fischer dissented from the order to hold the contempt hearing.

Congressional map

On 1/14/22, Kennedy, Fischer and DeWine issued a joint opinion that would have allowed their party’s Congressional gerrymander, but their argument has some major problems.

Cincinnati and Hamilton county is clearly gerrymandered

Mapmakers turned the 9-point Democratic lead in Hamilton county into a 3-point Republican leading non-compact district, by glomming the 67% Republican Warren county onto Cincinnati. Dissenting judges say there was a “perfectly valid justification”, citing Article XIX, Section 2(B)(8), which says “The authority drawing the districts shall attempt to include at least one whole county in each congressional district.”

However, they disregard the very next sentence of the Constitution, which says this “does not apply to a congressional district that is contained entirely within one county”. It’s easy to put District 1 entirely within Hamilton county, resulting in a vastly more compact district which duly favors Democrats at 55%:

Therefore, adding some other county onto Hamilton is not justified, especially Warren county which greatly reduces the district’s compactness. Section 2 requires that “every congressional district shall be compact.” (The weaker requirement that they “shall attempt to draw districts that are compact” only applies if there’s no bipartisan agreement, and mapmakers didn’t know the results of a future vote, which means they were strongly expected to draw compact districts.)

Equal populations

Dissenters are overly dismissive of more compliant maps, saying it’s “like comparing watermelons to walnuts” because their districts were not precisely equally populated. They call this a “fundamental defect”.

However, Article XIX describes a “ratio of representation” for congressional districts, and does not demand that districts be exactly equal. For Statehouse districts, the phrase “substantially equal” is used, but for Congressional districts no clarification is given whether the districts must be “substantially” versus “precisely” equal. OCRC points out that a court ruling in Tennant v. Jefferson County Commission allowed up to 0.79% divergence from exact equality.

Therefore, close to equal districts is within reason, and should not be cause for dismissing expert testimony about other possible maps. Nonetheless, the Brown/Galonski map referenced above does have exactly equal populations, and confirms that a much better map is feasible.

Splitting hairs

Section 1(C)(3) gives us three standards for district maps: (a) no undue party favoring/disfavoring (b) no undue community splits and (c) shapes should be compact. “Fairness” is difficult to define, but this gives us a 3-part test to guide the court’s judgement, so that strange shapes and unnecessary splits that create extra partisan advantage is strong evidence of illegal gerrymandering.

Dissenters see it differently. They say these tests must be considered completely in isolation, as mutually exclusive: “undue partisan advantage and lack of compactness cannot be the measure of whether governmental units have been unduly split, because it would render the separate limitations imposed by Section 1(C)(3) redundant.” They go even further, saying that “consideration of partisan fairness and compactness are irrelevant to this analysis.” This logic defies the intent of the anti-gerrymandering amendment, which was mostly concerned with unnecessary splits and odd shapes creating unfair partisan advantage.

A split could be undue for non-partisan reasons, such as negligent consideration of natural geography, so it is a standalone limitation not made redundant by others. Since Hamilton county is unnecessarily double split, it actually is unduly split even before considering party favoring. However, one of the most well-known conditions that makes a split undue is partisan chicanery, and the Hamilton double split does that too, making it even more undue. These factors cannot be treated as completely non-overlapping, especially when partisan mapmakers don’t consider splits and shapes separate from the advantage they produce!

Next dissenters say that a given county split can only be undue if the total number of county splits is too high: “Because the plan divides fewer than five counties twice, it cannot violate Section 1(C)(3)(b)’s prohibition on unduly splitting governmental units.” This is an absurdly narrow interpretation. The Constitution says “five counties may be split not more than twice,” which is as a prohibition against exceeding five double splits, not unbridled permission to unnecessarily double split counties.

Section 1(C)(3)(b) clearly anticipates that a split could be inappropriate even within those hard limits. It says, “The general assembly shall not unduly split governmental units, giving preference to keeping whole, in the order named, counties, then townships and municipal corporations.” This gives additional restrictions against unnecessarily splitting counties, even among the five double split maximum.

Dissenters are basically saying that mapmakers can unnecessarily split counties however they want within the hard limits, even for obviously partisan reasons. By refusing to consider compactness or unnecessary splits when determining if partisan advantage is undue, they would green light nearly all forms of gerrymandering!

The court’s majority correctly ruled that Hamilton, Cuyahoga and Summit counties are all unduly split.

Competitiveness

Dissenters say “districts that are competitive, by definition, do not unduly favor or disfavor a political party,” but that’s demonstrably not true in the adopted map. Making competitive districts is a fine goal, especially if red and blue areas are both made more competitive. However, keeping all the safe Republican seats, while using contorted shapes to break up Democratic regions into slightly Republican leaning districts, is a way of using “competitiveness” to unduly disfavor Democratic representation.

These justices acknowledge that Cleveland has a due Democratic advantage and that “only an extreme gerrymander could alter this arrangement.” That’s true, even if Cleveland was contorted into a “competitive” district.

Taking the compact and duly-Democratic Hamilton county and Cincinnati metro area and turning it into the oddly-shaped Republican leaning District 1 is textbook gerrymandering. The fact that the district is “only” 50% Republican to Democrats’ 47%, doesn’t change the fact that they unreasonably cracked the region to give themselves a better chance at winning than the political distribution would naturally produce.

State legislative maps

State Senate and State House legislative district maps were also challenged before the Ohio Supreme Court, and on 1/12/22, Kennedy, Fischer and DeWine would have allowed these unconstitutionally disproportionate gerrymanders too.

Republican favoring maps are not too partisan for Kennedy

Justice Kennedy wrote the minority’s decision defending the gerrymandered maps, with agreement from DeWine. Her worst argument is that Republicans did not attempt to overly favor their party with these maps:

“First, the commission was successful in its attempt to comply with Article XI, Section 6(A). The plan was not adopted by the commission with the primary purpose of favoring or disfavoring a political party. […] Second, the commission attempted to comply with Article XI, Section 6(B) because it sought to compromise on a plan that could be adopted through a bipartisan vote.”

Her assessment is detached from reality. The commission adopted a 64.4%-66.6% Republican plan, far exceeding the 54% target expected by Section 6(B), which says, “The statewide proportion of districts whose voters … favor each political party shall correspond closely to the statewide preferences of the voters of Ohio.”

65% does not correspond closely with 54%. Not only did they fail to achieve proportionality, the evidence is clear that DiRoss was specifically instructed to not attempt proportionality in the map he introduced to the commission. Republicans threw a few bones to Democrats from their initially even more partisan map, but that does not change the facts that they clearly attempted to achieve disproportionality, contrary to Section 6.

Shall attempt

Section 6 says mapmakers “shall attempt” to meet these standards. On that, Kennedy says:

“But an attempt denotes the beginning of an effort and does not speak to whether the results of that effort are successful. For example, the sentence, ‘She attempted to swim across the swollen river,’ which suggests failure, is different from the sentence, ‘She swam across the swollen river.'”

It’s true that an attempt does not guarantee success. However, it requires more than “the beginning of an effort”. Dipping her toe in the river, but then going home to take a bubble bath, is not only a failure to swim across the river, but a failure to even truly attempt it.

A better analogy is hiring a contractor to paint a fence white, and she paints it red instead. When she’s told she did it wrong, she puts one coat of white on just part of the fence and puts her brush away. She reports that she’s done with the job and says “I tried to paint it white”. The still mostly red fence is a failure to even seriously attempt to paint it white.

She also calls Section 6 “merely directory”, meant to inspire a “sense of duty” to follow it but deserving “no invalidating consequence for its disregard.” However, Section 9 requires the court to order a new map for Section 6 violations that also violate other sections, proving that it’s more than just a suggestion.

Judicial authority

Section 9(B) gives Ohio’s Supreme Court the power to invalidate maps, saying that a map may be “determined to be invalid by an unappealed final order of a court”. Kennedy disagrees, saying 9(B) “cannot be an independent source of judicial power to review and invalidate a plan.” However, that is outrageously false.

That’s because Article XIX, Section 3(B)(1) for Congressional maps uses the exact same language, and it’s the one and only mention of court invalidation in that entire Article. Therefore, those same words must grant invalidation power in Article XI for legislative maps as well.

Now if only Section 6 is skirted, the Constitution doesn’t require the court to invalidate the map, but that doesn’t mean they’re prohibited from doing so if the nature and severity of the violation justifies it.

There’s been much debate about 9(D)(3), which gives remedies for violation(s) of “Section 2, 3, 4, 5, or 7”, but doesn’t say what should happen if only Section 1, 6, or 8 is violated. Kennedy says this prevents the court from ruling on violations of these other sections on their own, but 9(D)(3) details no such prohibition. She reads the word “only” into it which isn’t there.

Staffing the commission with only members of the majority party in violation of Section 1 must be cause for disallowing a 10 year map, even though Section 9 doesn’t explicitly list the court’s authority to enforce Section 1. Instead of acknowledging this, Kennedy offers strawman arguments about striking down good maps over a slightly missed deadline or because the wrong person started a meeting.

Furthermore, Section 3(B)(2) says the plan “shall comply with all applicable provisions of the constitutions of Ohio and the United States…” In other words, a failure of any section of the Constitution about mapmaking is also a violation of Section 3. Section 6 is clearly an applicable provision of the Ohio Constitution, and failing to comply with it violates Section 3. They could have written “all applicable provisions except Section 6” if that was intended, but that’s not what it says. Therefore, violating Section 6 satisfies the conditions of 9(D)(3) and justifies its specific remedies as well.

For Fischer, omission is king

Justice Fischer added his opinion that “it is not even necessary for us to engage in an analysis of the merits of these cases”. His argument is perhaps worse than what Kennedy put forward.

Section 8(C)(1)(a) says the partisan maps “shall remain effective” for 4 years. The phrase “except as provided in Section 9” is used for 6-year and 10-year maps, but strangely is not used for 4-year maps. Fischer says this prevents the court from invalidating a 4 year map, although it doesn’t say “shall remain effective, and may not be invalidated by the court” either.

However, Section 9 explicitly calls for invalidation of maps that violate sections 2-5 or 7, regardless of their duration, and describes invalidation of partisan Section 8(C) maps without distinguishing between 4 and 6 year maps. It’s absurd to think that partisans could carve up the state in violation of every Section to make a 100% Republican map, and that the court could do nothing about it. Fischer says maybe Ohioans actually wanted it that way, that it’s “mere speculation” to suggest otherwise!

It’s clear that Section 8’s textual inconsistency does not deny powers granted to the court by Section 9, but Justices Fischer holds an omission of text above all else.

Statehouse maps, round two

On 2/7, these three again disagreed with the majority’s decision to invalidate the revised Statehouse maps, but would have also rejected the maps to fix lesser, more “isolated” violations of Section 3(D)(3).

Kennedy and DeWine mockingly say, “it would simplify matters if the commission would just provide the majority with the map-drawing software, Maptitude, so that they can draw the map themselves,” suggesting the majority fashions itself to be the “true redistricting commission.” They even blame the majority Justices for pushing Democratic gerrymandering.

“It is apparent that the majority has in mind the number of Democratic-leaning districts that must exist and the percentage of voters that is necessary in a district to guarantee electoral victories for Democrats. Things would be much easier if they just told the commission exactly what they want.”

But the majority isn’t trying to draw the map. They’re just telling the commission to follow the Constitution and actually try to achieve proportionality close to 54% R to 46% D, as Section 6 expects and as other maps have shown is feasible. The majority allows lots of discretion of where to put districts, and whether they are generally more proportionally competitive or more proportionally safe, but they may not be as intentionally disproportionate as the adopted plans have been.

Fischer added his own separate dissent again as well.

Do competitive districts favor a political party?

Their opinion includes a glaring contradiction about whether competitive districts favor either party. On one hand, they say, “competitive districts do not favor or disfavor a particular political party”, but just a couple pages later say, “if a district prefers a political party by the smallest statistical amount, it necessarily favors that party”. If a justice interprets the Constitution literally, we ought to expect their analysis to at least be consistent with itself!

In the first instance, they argue that competitive districts “cannot be evidence of the commission’s intent to disfavor the Democrats”. That is not always true, as I’ve already explained in the congressional case above, because a duly party-leaning region turned into a “competitive” district is one way of unduly disfavoring a party. Even though an individual toss-up district does not favor either party, it’s still possible to strategically use toss-up districts to diminish due minority party representation, while maintaining much safer districts for the majority party. Section 6(A) is about the overall plan’s aggregate effect toward disfavoring a party, and we must consider how toss-up districts could be used for that end.

In the second instance, they’re referring to districts with a razor-thin 50.003% majority as nevertheless party-favoring. There’s no hard-and-fast rule for defining “competitive”, but these justices have allowed that 54% is a reasonable line, and maybe 52 or 56% is still within reason, but surely the tiniest fraction just over 50% is about as hyper-competitive as it gets! They claim “there can be no toss-ups” when considering Section 6(B), but hypothetically an exactly evenly-split district must be considered a toss-up! Section 6(B) refers to “districts whose voters…favor each political party”, and it’s reasonable to interpret that there might be hyper-competitive districts whose voters do not substantially favor any political party. Therefore, they should not count in the calculation of the proportionality requirement alongside much safer party-leaning districts.

In this chart from the court ruling, it clearly shows the problem that dissenters are ignoring. It claims to be close to proportional with 57R-42D or 58% Republican, which one could argue is still not close to the 54% proportionality expectation. However, we could reasonably call this plan 57R-28D with 14 hyper-competitive toss-ups, with 67% of the party-favoring districts leaning Republican, which is objectively disproportionate in violation of Section 6(B).

Competitive seats are a good thing, but they need to be done with proportionality in order to satisfy 6(B).

Siding with gerrymandering instead of our Constitution

In their congressional dissent, they conclude “we cannot say that the…plan unduly favors a political party or unduly splits governmental units.” However, it’s not that they were unable to do that, but that they chose to allow their own party to be unduly favored rather than uphold Ohio’s prohibition against gerrymandering.

Justices Pat DeWine, Sharon Kennedy and Pat Fischer would have let the gerrymander win, and thus failed our Constitution and the people of Ohio.

On November 8th, 2022, these three were challenged by Judges Terri Jamison and Marilyn Zayas and Justice Jennifer Brunner for Chief Justice. All 3 Republicans won. Kennedy took over as Chief Justice and Governor DeWine appointed Hamilton County prosecutor Joe Deters to take her place.

Further reading

Judicial heroes of democracy defeat gerrymandered maps

“The fight of our life” – Justice Kennedy attacks outside Dem influence on Ohio redistricting

10/9/22: Opinion: Servile attendance at ‘Big Lie’ rally is disqualifying for Supreme Court justices