In the 2010s, Ohio voters approved constitutional amendments that aimed to curb partisan gerrymandering primarily by requiring parties’ legislative seats to be roughly proportional to their statewide votes. This strategy has now come to be seen as a failure because it didn’t include structural reform — i.e., it didn’t transfer mapmaking authority from self-interested politicians to an independent commission. In 2022, politicians repeatedly enacted plans flaunting the state constitution’s proportionality requirement and ignored the Ohio Supreme Court’s efforts to enforce this requirement. So this year, Ohio voters have put a measure on the ballot — Issue 1 — that would pair a proportionality criterion with structural reform. In order to “ban partisan gerrymandering,” Issue 1 would both require “the statewide proportion of districts in each redistricting plan that favors each political party [to] correspond closely to the statewide preferences of the voters of Ohio” and create an independent commission insulated from political pressures.

Last month, in an Orwellian move, the Ohio Ballot Board drafted ballot language for Issue 1 that flips the measure’s meaning on its head. According to the Board’s summary, Issue 1 seeks to “[r]epeal constitutional protections against gerrymandering” and to “require[]” the proposed commission “to gerrymander state legislative and congressional districts.” Unsurprisingly, the measure’s proponents objected to this deceptive language. I was also part of a group of scholars (along with Ned Foley, Ruth Greenwood, David Niven, and Dan Tokaji) that filed an amicus brief criticizing the Board’s misleading summary of Issue 1.

Yesterday, in another regrettable development, the Ohio Supreme Court mostly upheld the ballot language for Issue 1. The crux of the court’s reasoning was that some people refer to district plans that try to achieve proportional representation as “bipartisan gerrymanders.” It’s therefore accurate, according to the court, to say that Issue 1 requires gerrymandering — bipartisan gerrymandering.

Under Gaffney, a two-party, proportional-representation redistricting model may not be unconstitutional. But it is gerrymandering. . . .

What these rules require falls within the meaning of “gerrymander.” They mandate the new commission draw district boundaries that give a political advantage to an identifiable group—Republicans in some districts and Democrats in others. They require the commission to draw these partisan-advantaged districts at the expense of traditional, neutral redistricting criteria to overcome natural political geography and achieve proportional representation. These rules are not meaningfully different from those that produced the Gaffney plan. See Gaffney, 412 U.S. at 737-738. Because that was gerrymandering, Gill, 585 U.S. at 61, the requirements at issue here may fairly be called gerrymandering.

In her partial dissent, Justice Brunner pointed out that the Board’s summary never uses the adjective, “bipartisan,” before “gerrymandering.” The Board’s summary thus suggests that Issue 1 requires the proposed commission to engage in the more familiar form of gerrymandering — partisan gerrymandering. But that suggestion is wrong. Not only is proportionality closer to the opposite than the essence of partisan gerrymandering, the Ohio Constitution already requires proportionality and the Ohio Supreme Court has already characterized this requirement as an anti-gerrymandering provision.

. . . [D]espite the claims of the majority, gerrymandering is not proportionality. Gerrymandering contemplates abuse; proportionality contemplates fairness—that is, districts’ close correspondence in their partisan political leanings to the partisan political leanings of the voters of the state. . . .

. . . [T]his is similar—but linguistically different—from what Article XI, Section 6(A) of the Ohio Constitution already provides. The difference, according to the majority opinion, is that the standards under Article XI, Section 6 need only be “attempted” to be met. Majority opinion at ¶ 37. The majority’s discussion of gerrymandering equates it with proportionality, and it finds that the proposed amendment requires gerrymandering, while current law requires only attempted gerrymandering. This is nonsensical.

Both Justice Brunner’s and Justice Donnelly’s opinions also include pointed passages about the black-is-white quality of the Board’s summary. Here’s Justice Brunner:

The majority opinion reflects an abject failure of this court to perform an honest constitutional check on the ballot board’s work. We should be requiring a nearly complete redrafting of what is perhaps the most stunningly stilted ballot language that Ohio voters will have ever seen. The ballot board’s actions, endorsed by a majority of this court, leave any objective observer scratching their head and asking, “Who’s in charge here—Ohio’s people or its politicians?”—which ironically is the essential issue the proposed constitutional amendment seeks to address.

And here’s Justice Donnelly:

Given that the four members of this court in the majority today apparently think that the word “ ‘boneless’ ” means “ ‘you should expect bones,’ ” Berkheimer v. REKM, L.L.C., 2024-Ohio-2787, ¶ 38 (Donnelly, J., dissenting), I’m sure it comes as no great surprise that they think that a constitutional amendment to “ban partisan gerrymandering” means to “require[] gerrymander[ing].” While the majority’s Amelia Bedelia approach to the law and the absurdity of the majority’s conclusions might make you laugh, it should also make you outraged. Everyone should be outraged by today’s decision, regardless of whether one thinks the proposed constitutional amendment is a wonderful idea, a terrible idea, or anything in between.

Read the original piece here.