Partisan gerrymandering and the mobilization of Ohio voters

CLEVELAND – This past year has been the most consequential in Ohio constitutional history since the iconic 1912 Constitutional Convention. In August, Ohio voters mobilized and resoundingly rejected an effort to abandon the historic simple majority standard for approving constitutional amendments; and in November, the mobilization continued, and voters resoundingly approved a constitutional amendment to enshrine reproductive rights, including abortion rights, in the Ohio Constitution.

There is a strong chance that 2024 will approach or even exceed the current year in its long-term importance. But it won’t happen unless the 2023 mobilization of voters can be transferred to the effort to ban partisan gerrymandering.

Petitions are now being circulated to collect the 413,487 valid signatures necessary to place the proposed redistricting amendment on the ballot to bar once and for all partisan gerrymandering in drawing district lines for both the General Assembly and Congress.

If approved by voters on Nov. 5, 2024, the “Citizens Not Politicians Amendment” will bar current and former politicians, party officials and lobbyists from serving on a new redistricting commission composed of five persons identified as Democrats, five identified as Republicans and five identified as independents.

The proposal of this amendment is a surprising development, given that in 2015 and 2018 more than 70% of Ohio voters approved state constitutional amendments to bar partisan gerrymandering. These amendments, which prohibited drawing district lines for partisan advantage, assigned state redistricting to a bipartisan commission composed of four legislative leaders (or their appointees) and three statewide officials –– the governor, the auditor, and the secretary of state –– and assigned congressional redistricting to both the commission and the General Assembly.

So, one might ask, why are we doing this again?

This is a fair question, but the answer is simple.

Both the 2015 and 2018 amendments gave the Ohio Supreme Court exclusive responsibility for determining whether redistricting plans met state constitutional standards; but the amendments were deeply flawed, because they gave too much power to politicians and did not give the court authority to redraw the maps in the event of a stalemate or an impasse. That omission enabled the redistricting commission and the General Assembly in 2022 to defy seven decisions of the Ohio Supreme Court that had ruled that the redistricting maps were unconstitutional.

At the time the voters considered the amendments, the denial of remedial power to the court did not seem like a big deal. Indeed, no one publicly anticipated that either the commission or the General Assembly would flout the rule of law and defy the court.

Partisan gerrymandering is a major concern, but in 2019 the U.S. Supreme Court, which once saw the protection of voting rights as a core responsibility, announced that it would not entertain partisan gerrymandering claims and sent the issue to the states.

In Ohio, partisan gerrymandering has led to the extreme partisanship that characterizes the General Assembly and that has contributed to:

· The erosion of home rule;

· The abdication of the state’s constitutional responsibility to fund “a thorough and efficient system of common schools;”

· The embarrassingly low minimum wage;

· The emasculation of the governor’s veto power;

· The continued subsidy of coal; and

· The planned efforts to undermine the new reproductive rights amendment.

The need to replace the current Ohio Redistricting Commission with a commission of citizens –– not politicians –– was identified by former Ohio Supreme Court Maureen O’Connor, who left the court in January 2023 because of age limits. In her prescient Jan. 12, 2022, concurring opinion in the court’s first redistricting decision, she predicted the ensuing train wreck and argued that Ohio should adopt an independent redistricting commission.

And Justice O’Connor, whose energetic post-judicial career demonstrates the foolishness of barring Ohio judges from beginning new judicial terms after they turn 70, has taken the lead along with former Ohio Supreme Court Justice Yvette McGee Brown in the broad, nonpartisan statewide coalition to mobilize Ohio voters and bar partisan gerrymandering.

Let’s hope they succeed.

Steven H. Steinglass is Dean Emeritus and Professor Emeritus at the Cleveland State University College of Law.