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In Second Opinion This Week, Ohio Supreme Court Strikes Down Gerrymandered Districts as ‘Antithetical Perversion of Representative Democracy’

A woman holds her voting sticker in her hand after casting her ballot at the Leetonia American Legion Post 131 on November 8, 2016 in Leetonia, Ohio. (Photo by Ty Wright/Getty Images.)

A woman holds her voting sticker in her hand after casting her ballot at the Leetonia American Legion Post 131 on November 8, 2016 in Leetonia, Ohio. 

For the second time this week, the Ohio Supreme Court issued a 4-3 opinion that rubbished a slate of gerrymandered political districts in the Buckeye State.

A Friday opinion wiped clean a series of Republican-engineered boundaries which were created to encapsulate federal congressional districts. Earlier in the week, the state’s highest court knocked down districts designed for state lawmakers in both houses of Ohio’s bicameral legislature.

As with the earlier opinion, Chief Justice Maureen O’Connor, a Republican, once again joined the high court’s Democrats in decimating the GOP-designed maps. The court’s Democrats, Michael P. DonnellyMelody J. Stewart, and Jennifer L. Brunner, joined O’Connor to form the majority. The court’s other Republicans (Sharon L. Kennedy, Patrick F. Fischer, and Richard Patrick “Pat” DeWine) issued a single dissent which, at 39 pages, nearly matched the 42-page majority opinion (and a partial-page concurrence) in volume, but not in legal weight.

The court’s opinion was grounded in recently enacted amendments and additions to the Ohio Constitution. Article XI was amended; Article XIX was adopted. One section of Article XIX expressly forbids a district map “that unduly favors or disfavors a political party or its incumbents” — depending on how the map was enacted. Another section of Article XIX says the state legislature “shall not unduly split governmental units” and must “giv[e] preference to keeping whole, in the order named, counties, then townships and municipal corporations” when drawing and dividing the land into political constituencies.

Justice Donnelly wrote for the majority. He began by waxing about the importance of voting and quoted famous American poet Walt Whitman in so doing:

In our representative democracy, the power rests at all times with the people. Their power is never more profound than when it is expressed through their vote at the ballot box. Those whom the people elect to represent them are given transitory authority to discharge their responsibilities under the Constitutions and laws of the United States and the state of Ohio, but the true power is expressed by the people when they exercise their right to vote on what Walt Whitman celebrated as “America’s choosing day,” when the heart of it is not in the chosen but in the act of choosing.

Donnelly continued:

Gerrymandering is the antithetical perversion of representative democracy. It is an abuse of power—by whichever political party has control to draw geographic boundaries for elected state and congressional offices and engages in that practice—that strategically exaggerates the power of voters who tend to support the favored party while diminishing the power of voters who tend to support the disfavored party. Its singular allure is that it locks in the controlling party’s political power while locking out any other party or executive office from serving as a check and balance to power. One avaricious proponent of congressional redistricting and gerrymandering declared redistricting “a great event,” proclaiming gleefully: “Redistricting is like an election in reverse! Usually the voters get to pick the politicians. In redistricting, the politicians get to pick the voters!”

Donnelly then noted that the voters’ decisions to change the state constitution should have been a clear signal to political leaders that “more of the same was not an option” when it came to district maps.

“Despite the adoption of Article XIX, the evidence in these cases makes clear beyond all doubt that the General Assembly did not heed the clarion call sent by Ohio voters to stop political gerrymandering,” the majority continued.

Conducting business as usual with no apparent concern for the reforms contemplated by Article XIX, the General Assembly enacted 2021 Sub.S.B. No. 258, which passed by a simple majority and was signed into law by Governor Mike DeWine on November 20, 2021. The bill resulted in districts in which undue political bias is—whether viewed through the lens of expert statistical analysis or by application of simple common sense—at least as if not more likely to favor Republican candidates than the 2011 reapportionment that impelled Ohio’s constitutional reforms.

The court held the Buckeye State’s congressional district plan was “invalid in its entirety because it unduly favors the Republican Party and disfavors the Democratic Party.”  That, the court ruled was a violation of Article XIX, Section 1(C)(3)(a) of the state constitution.

The court also held that the plan proffered by a Republican-led redistricting commission “unduly splits Hamilton, Cuyahoga, and Summit Counties in violation of Section 1(C)(3)(b)” of Article XIX of the state constitution.

The court ordered the “General Assembly to adopt a new congressional-district plan that complies in full with Article XIX of the Ohio Constitution.”

The dissent goaded the majority for making policy, not applying law. It also accused the majority of failing to present “any workable standard” that could be applied to determine when the legislature had “unduly favor[ed] a political party or divide[d] a county.”

Read the full opinion below:

[Image via Ty Wright/Getty Images]

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University. He is a former anchor and executive producer for the Law&Crime Network and is now deputy editor-in-chief for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only. You should not rely on it for legal advice. Reading this site or interacting with the author via this site does not create an attorney-client relationship. This website is not a substitute for the advice of an attorney. Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.