Federal judges to pick maps rejected by Ohio Supreme Court if redistricting leaders don't act

Supporters of Fair Districts in Ohio march around the Ohio Statehouse in Columbus, Ohio, after the Ohio Redistricting Commission held a meeting on Thursday, October 28, 2021.
Supporters of Fair Districts in Ohio march around the Ohio Statehouse in Columbus, Ohio, after the Ohio Redistricting Commission held a meeting on Thursday, October 28, 2021.

Federal judges forecasted how they will resolve Ohio's legislative redistricting snarl, effectively eliminating Republicans' incentive to draw new state House and Senate maps before May 28.

On Wednesday, three federal judges ruled that they would step in to resolve the endless back-and-forth between the Ohio Redistricting Commission, a seven-member body tasked with drawing legislative maps, and the Ohio Supreme Court, which has rejected four maps so far. Each rejection from the court was a 4-3 decision.

The federal judges set a deadline for Ohio's leaders to resolve their own problems: May 28, so the state could hold an Aug. 2 primary for state House and Senate races.

Then, two of those judges – U.S. Court of Appeals for the 6th Circuit Judge Amul Thapar and Western District of Kentucky Judge Benjamin Beaton – picked which maps they would order if forced to step in. They would back a plan to use maps approved by four Republicans on Feb. 24 and later rejected by the Ohio Supreme Court. Both judges were appointed by former President Donald Trump.

Republicans on the commission pitched these maps as in line with Ohio's statewide voting preferences, but Democrats – and later the Ohio Supreme Court's majority – argued that many of the so-called Democratic House and Senate districts were more like tossups, easily won by the GOP in strong Republican years. There were no similar districts on the GOP side.

Republican Auditor Keith Faber voted against these maps because he thought they favored Democrats too much and unnecessarily split municipalities.

GOP proposed House districts
GOP proposed House districts
GOP proposed maps for Ohio Senate
GOP proposed maps for Ohio Senate

The third judge, Southern District of Ohio Judge Algenon Marbley, called those maps "irredeemably flawed." He was appointed by former President Bill Clinton.

Marbley preferred a plan crafted by mapmakers hired by the commission, saying it was closer to complying with voter-approved changes to the Ohio Constitution aimed at curbing partisan gerrymandering.

Former U.S. Attorney General Eric Holder, whose National Redistricting Action Fund was among the groups that filed suit over the maps, called the court's ruling dangerous.

“The federal court has illogically and dangerously given its blessing to gerrymandered maps that were declared unconstitutional and invalid by the Ohio Supreme Court," Holder said in a statement. "These kinds of actions put the legitimacy of the federal judicial system into question.”

Why pick the third maps?

Thapar and Beaton concede that picking maps rejected by the Ohio Supreme Court is far from ideal.

"In more than one way, this case brings to mind Winston Churchill’s famous quip that 'democracy is the worst form of government except for all those other forms that have been tried from time to time.' The same can be said for Map 3," they wrote. "We are acutely aware of its flaws. Yet with deference to the state in mind, we see it as the best of our bad options."

One reason they picked these maps was because election officials had already started implementing them.

If the judges had picked a different set of maps, election officials would have needed notice by Wednesday. By using the third set of maps as a backstop, judges buy Ohio officials more time to find a different solution, Thapar and Beaton argue.

But Marbley disagreed, saying that forecasting their eventual pick only made it easier for Republicans on the Ohio Redistricting Commission to wait out the clock.

"Indeed, the Republican Commissioners will benefit directly from a crisis they created, and which the Ohio Supreme Court has attributed squarely to them," Marbley wrote.

The two other judges had more faith in the commission, writing: "we must presume that Ohio’s officials are public servants who still view partisan advantage as subordinate to the rule of law."

Thapar and Beaton considered picking the current legislative maps used for the last decade but conceded that neither side asked for them. Both Democrats and Republicans raised concerns about how districts would have too many or too few people based on population changes, a problem called malapportionment.

"If any party had requested this remedy, it may well have proven the most attractive and equitable option," they wrote.

Beaton and Thapar didn't choose maps drawn by the two hired mapmakers, University of Florida's Michael McDonald and National Demographics Corp.'s Douglas Johnson, or a Stanford professor because they hadn't passed the Ohio Redistricting Commission. "Ohio’s voters put the pen in the commission’s hands."

But Marbley liked the hired mapmakers' plan, calling it the "closest embodiment of legitimate state policy." Ultimately, he was outnumbered.

Why pick an Aug. 2 primary?

The judges did agree on the best date for the legislative race primary: Aug. 2.

The Ohio Supreme Court, in its latest redistricting decision, suggested the state could hold a later primary.

But state and local officials rejected that idea, saying they needed time between the second primary and general election. Some counties were already holding elections on Aug. 2 for local issues.

"The evidence before the court makes overwhelmingly clear that this is the least disruptive, costly, and confusing way for a federal court to preserve Ohioans’ right to vote in primary races required by state law," the federal judges wrote.

Ohio lawmakers could change the primary date at any point, but they have shown little interest in doing so.

What happens next?

The Ohio Supreme Court's majority has ordered the Ohio Redistricting Commission to send it new maps by May 6. Those who pushed for redistricting reform are practically begging them to get back to work.

"For our representative democracy to work, Ohioans need districts that are fair and responsive to voters, rather than rigged for partisan political interests," said Jen Miller, executive director of the League of Women Voters of Ohio.

But if Republicans on the commission like the maps they already passed, there is little incentive to act.

Rep. Bill Seitz, R-Green Township, took to Twitter for a victory lap: "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."

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Jessie Balmert is a reporter for the USA TODAY Network Ohio Bureau, which serves the Akron Beacon Journal, Cincinnati Enquirer, Columbus Dispatch and 18 other affiliated news organizations across Ohio.

This article originally appeared on Cincinnati Enquirer: Ohio redistricting: Federal judges could pick rejected maps on May 28