Ohio Supreme Court redistricting decision: Read Chief Justice Maureen O'Connor's opinion
Ohio Supreme Court Chief Justice Maureen O'Connor, a Republican, sided with the court's three Democrats to determine a pair of state legislative maps unconstitutional.
In a concurring opinion, O’Connor suggested Ohioans again revise the state constitution to remove mapmaking authority from politicians.
O'Connor wrote that the seven-member Ohio Redistricting Commission, comprised of statewide elected officials and four state legislators, "is seemingly unwilling to put aside partisan concerns as directed by the people’s vote."
Read the justices' full opinions below.
O'Connor, who is ineligible to run for reelection this year due to court age limits, suggested a different route: "a truly independent, nonpartisan commission that more effectively distances the redistricting process from partisan politics."
More: Why all eyes will be on Ohio Supreme Court's Maureen O'Connor during redistricting lawsuits
Justice Jennifer Brunner, a Democrat, agreed with O’Connor’s opinion.
Chief Justice Maureen O'Connor's concurring opinion
"I concur fully in the majority opinion.
I write separately because readers should understand they have the power to again amend the Ohio Constitution to ensure that partisan politics is removed from the drawing of Ohio Senate and House districts that takes place every ten years.
And, if upon reading the court’s decision today, readers determine that Article XI of the Ohio Constitution is not living up to its promise—in light of the map-drawing process presented to the court in these cases (or the dissenting opinions’ assertion that Article XI has no discernable or enforceable effect to curb gerrymandering in the state of Ohio)—and that leaving the redistricting process to partisan-elected officials will not achieve the desired outcome, readers should know that other models of the redistricting process exist. In other states, voters have elected ballot measures that strip redistricting authority from state legislatures and partisan officeholders and place it instead with nonpartisan redistricting commissions. Indeed, “independent redistricting commissions are increasingly synonymous with citizen redistricting commissions, where ordinary citizens serve as commissioners,” because staffing commissions with career politicians, including legislators, “still permitted informal, careerist, and political interests to permeate the redistricting process.” (Emphasis sic.) Emily Rong Zhang, Bolstering Faith with Facts: Supporting Independent Redistricting Commissions with Redistricting Algorithms, 109 Cal.L.Rev. 987, 989-990 (2021), citing Bruce E. Cain, Redistricting Commissions: A Better Political Buffer? , 121 Yale L.J. 1808, 1817-1821 (2012).
While not free from their own vulnerabilities, independent redistricting commissions have become “the premier institutional solution to the problem of partisan gerrymandering” because they increase the degree of separation between map-drawers and partisan politics. Zhang, 109 Cal.L.Rev. at 1000. They shift the power to redistrict away from partisan actors who have an incentive to gerrymander in order to maintain or expand their political power. Christopher Esposito, Gerrymandering and the Meandering of Our Democratic Principles: Combating Partisan Gerrymandering After Rucho, 30 S.Cal. Interdisc.L.J. 195, 211 (2021). States that have enacted citizen-led, independent redistricting commissions include Arizona, California, Michigan, and Colorado. Zhang, 109 Cal.L.Rev. at 990.
In 2000, in an effort to end the practice of gerrymandering, Arizona voters adopted Proposition 106, an initiative that amended the state’s constitution to shift redistricting authority from the state legislature to the Arizona Independent Redistricting Commission (“AIRC”). See Arizona State Legislature v. Arizona Independent Redistricting Comm., 576 U.S. 787, 792, 135 S.Ct. 2652, 192 L.Ed.2d 704 (2015). The resulting constitutional amendment provides for a five-member commission, with each member chosen from a pool of nominees established by the state’s commission on appellate-court appointments. Arizona Constitution, Article IV, Part 2, Section 1(3) through (6). The first four members of the AIRC are chosen by the majority and minority party leaders in the state legislature, who each select one member from the nomination pool. Id. at Section 1(6). Those four named commission members then choose the final member from the same nomination pool; the final member may not be registered with any political party already represented on the commission. Id. at Section 1(8). Except for school-board members and officers or candidates for school board, current holders of, or candidates for, public office may not serve on the AIRC, and no more than two of the commission’s five members may be affiliated with the same political party. Id. at Section 1(3). The Arizona initiative required that AIRC’s redistricting plans “start from scratch, modifying an initial grid plan according to traditional criteria such as compactness, contiguity, and community of interest, and to the extent possible relying on visible geographic features and undivided census tracts,” without considering incumbency or using political data in the construction of the initial grid. Cain, 121 Yale L.J. at 1830.
The California Redistricting Commission operates similarly to the AIRC, but its redistricting plans take effect only if approved by public referendum. Arizona State Legislature at 798, citing California Constitution, Article XXI, Section 2 and Cal.Govt.Code Ann. 8251-8253.6 (West Supp.2015); see also Cain, 121 Yale L.J. at 1823. “The unstated assumption behind the California effort was that a bipartisan panel of citizens, unconnected to incumbent legislators and relying on neutral criteria, would create fair and competitive district boundaries without explicit instructions to do so and without using political data. In other words, partisan fairness and competition would be the indirect effect of the commission’s composition and adherence to designated neutral formal criteria (e.g., compactness, respect for city and county boundaries, following communities of interest, etc.).”Cain, 121 Yale L.J. at 1823-1824. The multi-step process for choosing the 14 commission members in California was “‘designed to be extraordinarily fair and impartial, and lead to a group of commissioners who would meet the very high standards of independence and would reflect the population of [the state].’ ” Id. at 1824, quoting California Citizens Redistricting Commission, Final Report on 2011 Redistricting 2 (2011).
More recently, in 2018, Michigan voters passed a proposal to amend that state’s constitution “ ‘to establish a commission of citizens with exclusive authority to adopt district boundaries for the Michigan Senate, Michigan House of Representatives and U.S. Congress.’ ” Daunt v. Benson, 999 F.3d 299, 303 (6th Cir.2021), quoting Michigan Board of State Canvassers, Official Ballot Wording approved by the Board of State Canvassers, August 30, 2018, Voters Not Politicians. The Michigan commission consists of 13 registered voters, randomly selected by the secretary of state from eligible applicants. Id. at 304. It must include four members who are affiliated with each of the state’s two major political parties and five members who are unaffiliated with those parties. Id. Partisan officeholders and candidates, their employees and certain relatives, and lobbyists are prohibited from serving on the commission. Id. And a final decision by the commission to adopt a redistricting plan requires a majority vote that includes at least two commissioners who affiliate with each major political party and two commissioners who do not affiliate with either major party. Id. at 305, citing Michigan Constitution Article IV, Section 6(14)(c).
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."
This article originally appeared on Cincinnati Enquirer: Redistricting: Read Ohio Chief Justice Maureen O'Connor's opinion
