New maps for Ohio House and Senate districts must be re-drawn. The Supreme Court of Ohio ruled Wednesday that the maps do not meet voter-approved provisions of the Ohio Constitution to reduce partisan political gerrymandering.

In a 4-3 decision, the Supreme Court concluded the maps are invalid because the Ohio Redistricting Commission did not attempt to draw legislative districts that correspond with the statewide voter preference of Ohioans.

In the opinion, the Court went step-by-step through the redistricting process, noting, “All parties agreed that in statewide partisan elections over the past decade, Republican candidates had won 54 percent of the vote share and Democratic candidates had won 46 percent of the vote share.”

However, the Ohio House map adopted by the commission favored Republicans with 67 seats to 32 Democratic seats, and the Ohio Senate map favored Republicans with 23 seats to 10 Democratic seats.

The Court concluded that the maps did not meet the required proportionality in Article XI, Section 6(B) of the constitution.

The Republican legislative leaders of the House and Senate had argued the new provisions of the constitution requiring the districts to reflect the statewide voting preference were optional. The Court disagreed. Writing for the Court majority, Justice Melody J. Stewart stated, “[W]hen drawing a district plan, the commission must attempt to meet the standards set forth in Section 6.”

The majority also ruled the commission violated Article XI, Section 6(A), which states that no plan shall be drawn primarily to favor a political party.

The maps, which set the boundary lines for the 99 House seats and 33 Senate seats, will be used to conduct the 2022 elections. Primary elections are scheduled for May 3.

The Court ordered the commission to adopt a new plan within 10 days that conforms with the Ohio Constitution. The Court stated it will retain jurisdiction “to review the plan that the commission adopts for compliance with our order.”

Chief Justice Maureen O’Connor joined Justice Stewart’s majority opinion and wrote a separate concurring opinion. Justice Michael P. Donnelly joined the majority opinion as did Justice Jennifer Brunner, who also wrote a concurring opinion. Justice Brunner also joined Chief Justice O’Connor’s concurrence.

Justices Sharon L. Kennedy and Patrick F. Fischer each wrote dissenting opinions.

Justice R. Patrick DeWine joined Justice Kennedy’s dissent.

Redrawing of legislative maps, called redistricting, occurs every 10 years after the U.S. Census is taken. In November 2015, 71 percent of Ohioans voted to amend the state constitution to change the map-drawing process and give the Supreme Court of Ohio jurisdiction to hear any challenges to maps approved by the newly created Redistricting Commission.

Proponents of the amendment told voters it would “protect against gerrymandering” and “require districts to closely follow the statewide preferences of voters.”

In September 2021, the Redistricting Commission’s five Republicans approved and adopted the maps, but the two Democratic members opposed them. Several organizations, including the League of Women Voters of Ohio, the A. Philip Randolph Institute of Ohio, the Ohio Organizing Collaborative, and voters filed lawsuits with the Supreme Court, claiming the Republican-approved maps violated the new provisions of the constitution.

The challenges centered on the commission’s lack of compliance with Article XI, Section 6. Section 6 states: “The Ohio redistricting commission shall attempt to draw a general assembly district plan that meets all of the following standards:
(A) No general assembly district plan shall be drawn primarily to favor or disfavor a political party.?(B) The statewide proportion of districts whose voters, based on statewide state and federal partisan general election results during the last ten years, favor each political party shall correspond closely to the statewide preferences of the voters of Ohio.?(C) General assembly districts shall be compact.”

Other sections of Article XI require districts to be drawn as compact as possible, splitting counties, cities, and other political subdivisions in the least possible way to create even populations for the 99 House and 33 Senate districts.

The opinion noted that under Section 6, the commission is then supposed to examine the statewide federal and state partisan election results over the past 10 years to determine how the voters in the proposed districts are likely to vote in the future.

The commission’s five Republican members who voted to adopt the maps maintained that the statewide preference can be calculated using the percentage of the winning candidates in statewide elections. These commission members found that since Republicans won 13 of 16 statewide elections in the decade, which is 81 percent, the adopted maps were constitutional because the new districts’ voting preferences fall between 54 percent and 81 percent of the statewide preference.

The Court ruled the statewide preference is not determined by the percentage of Republican versus Democratic candidates who won their races. Rather, calculations had to be based on statewide votes cast by voters, not election victories.

The Court said that the challengers presented “substantial expert evidence showing that the commission could have drawn a more proportional plan.”  

In her concurring opinion, Chief Justice O’Connor stated that if Ohioans determine that Article XI of the Ohio Constitution is not living up to its promise or that leaving the redistricting process to partisan-elected officials will not achieve the desired outcome, other models of the redistricting process exist. She wrote that voters in other states have stripped redistricting authority from state legislatures and partisan officeholders and place it instead with nonpartisan redistricting commissions. States that have enacted citizen-led, independent redistricting commissions include Arizona, California, Michigan and Colorado.

“Having now seen firsthand that the current Ohio Redistricting Commission — comprised of statewide elected officials and partisan legislators — is seemingly unwilling to put aside partisan concerns as directed by the people’s vote, Ohioans may opt to pursue further constitutional amendment to replace the current commission with a truly independent, nonpartisan commission that more effectively distances the redistricting process from partisan politics,” she concluded.

Justice Brunner stated in a concurring opinion that she believes the proposed maps also are invalid under Article XI, Section 3(B)(2) of the Ohio Constitution, which requires the maps to comply with the federal and state constitutions and federal law. In addition, she maintained the plan violates Article 1, Section 2 of the Ohio Constitution, which gives the people “the right to alter, reform, or abolish” the government “whenever they may deem it necessary.”

“Gerrymandering at its core prevents voters from voting on equal terms to alter or reform their government,” she wrote. “Gerrymandering is unconstitutional, because it denies Ohioans equal protection in the exercise of their voting power.”

Along with concurring with the chief justice’s opinion, Justice Brunner also discussed the benefits of independent redistricting commissions over Ohio’s bipartisan structure.

In her dissent, Justice Kennedy disagreed with the majority’s conclusion that the Court has unlimited authority to review any alleged constitutional violation in the adoption of a General Assembly-district plan. Rather, she wrote that Article XI, Section 9(D) explicitly limits the Court’s authority to invalidate a plan. Under Section 9(D)(3), the Court can order the commission to amend a General Assembly-district plan or adopt a new one if the plan “does not comply with the requirements of Section 2, 3, 4, 5, or 7 of” Article XI, which describe the neutral map-making requirements, and all applicable provisions of the state and federal constitutions and federal law, she noted.

If the Court could invalidate a plan that fails to comply with Section 6(A) or (B), “one would naturally expect Section 9(D) to say so. But that language is conspicuously absent,” she wrote. Article XI distinguishes the provisions that are mandatory and enforceable by a court (Sections 2, 3, 4, 5, and 7) from provisions that are directory, such as Section 6, she stated. A violation of a directory provision is safeguarded against violation by each commission member honoring his or her oath to uphold the constitution, she explained.

Justice Kennedy concluded that the Court cannot invalidate the General Assembly-district plan without a predicate violation of Section 2, 3, 4, 5, or 7. Moreover, she explained, the General Assembly-district plan did not violate equal protection or the rights to free speech and association. Therefore, the challenges failed and the General Assembly-district plan cannot be invalidated in these cases, she wrote.

The provisions of Article XI, Section 8, which provide procedures that the commission must follow when it reaches an impasse, limits the Court’s ability to review the maps, Justice Fischer explained in his dissent.

Because the commission members reached an impasse, under Section 8(C)(1)(a) they could only approve a map that would remain in effect for four years. The Court’s ability to review a commission map is in Section 9.

“Section 8(C)(1)(a) contains no proviso that the effectiveness of a four-year plan is subject to the provisions of Section 9. Section 8(C)(1)(a) instead provides that the plan ‘shall remain effective’ for four years. Period. No exception for Section 9 is listed,” he wrote.

Justice Fischer maintained that if the majority directs the Court to read the “shall” in Section 6 as mandatory, “then we should also read the ‘shall’ in Article XI, Section 8(C)(1)(a) as mandatory and requiring a four-year plan to remain effective for four years, and without any Section 9 exceptions.”

In regard to the suggestions that voters might consider further constitutional amendments, Justice Fischer noted that “in 2012, Ohioans overwhelmingly rejected a previous proposal to amend the Constitution, with more than 63 percent of those who voted on the issue declining to create a state-funded so-called ‘independent commission’ to draw legislative and congressional districts.”