Mark R. Brown, Newton D. Baker/Baker and Hostetler Chair at Capital University Law School in Columbus, Ohio, discusses the constitutional issues that are implicated in the battle for redistricting in Ohio...
Ohio’s Supreme Court has now twice ordered the Ohio Redistricting Commission to produce constitutionally compliant maps. Twice the Redistricting Commission, or at least the Republican majority that controls the Commission, has failed. More accurately, it has once failed and once refused. Following the Ohio Supreme Court’s second order, the Commission on February 18, 2022 returned to the Court empty-handed, claiming that the task was impossible and that it had thus reached an impasse.
The Ohio Supreme Court immediately scheduled a contempt hearing and directed the Commission to demonstrate why it should not be held in contempt. Its orders, after all, were pretty clear about the reasons the Commission’s prior maps were unconstitutional. Ohio’s Constitution mandates that the General Assembly’s districts be drawn to “correspond closely to the statewide preferences of the voters of Ohio,” meaning that neither major party should be pre-ordained to win a supermajority of the seats. The Commission’s two maps had Republicans winning far more than their fair share; thus new maps were required.
Perhaps sensing that the Ohio Supreme Court was serious, the Commission on February 25, 2022 belatedly submitted a new plan to the Court. Unfortunately, this one appears to be as problematic as the prior ones, with Republicans still projected to win a disproportionate share of the legislative seats. With some primary deadlines having already passed and the May 3, 2022 primary closely approaching, Ohio’s election machinery is now feeling the squeeze put on it by the Commission’s recalcitrance.
In most States, when faced with legislative and/or bureaucratic recalcitrance, State courts could simply adopt new maps. Knowing this, of course, the politicians in those States often act in a timely fashion and adopt acceptable maps when instructed to do so by a State’s high court. But when they don’t, State courts have not hesitated to step in.
The problem in Ohio is that the same constitutional amendment that prohibits political gerrymandering vests mapmaking in the sole hands of the General Assembly and the Ohio Redistricting Commission. Ohio’s Constitution states in no uncertain terms that “[n]o court shall order, in any circumstance, the implementation or enforcement of any general assembly district plan that has not been approved by the commission.” Rather, the most that a court can do is hold a proffered plan unconstitutional. Knowing that the Ohio Supreme Court is powerless to draw its own maps, Republican leaders in Ohio have concluded that they can just run out the clock by tendering unacceptable pans.
It is far from clear, however, that the Republicans who control the Redistricting Commission are legally correct. The federal Constitution’s Fourteenth Amendment, after all, requires that districts be numerically, if not politically, apportioned, and Ohio’s old legislative districts no longer comply with this constitutional requirement following the 2020 Census. Redistricting will thus be required at some point before the next election so that Ohio’s districts satisfy one-person-one-vote.
Ohio’s Supreme Court, like all State high courts, moreover, has jurisdiction over federal constitutional claims. It is itself bound by the federal Constitution and required to consider claims under its terms. To the extent the Ohio Constitution contradicts or impedes the federal Constitution, Ohio’s Supreme Court is required to recognize the federal Constitution’s superior terms and rule accordingly.
To the extent the Ohio Constitution both requires the Ohio Supreme Court to create a redistricting impasse and prohibits it from correcting it, a credible violation of the federal Constitution can be imagined. This situation, after all, would result in Ohio’s districts violating the Fourteenth Amendment’s one-person-one-vote principle, something a federal court would surely have the power to correct notwithstanding Ohio’s “no court” provision to the contrary.
Republican leaders have conceded this point by taking their case to federal court in an effort to force their politically gerrymandered maps on Ohioans. While their claim that these illegal maps are the only maps that the federal court can adopt are ridiculous, their filing admits that some court at some point must have authority to step in. Ohio’s constitutional provision stating that “no court” can, Republicans implicitly admit, is thus limited by the Fourteenth Amendment and the Supremacy Clause. At least this is true when a true redistricting impasse occurs.
Faced with an approaching violation of the Fourteenth Amendment should Ohio reach a stalemate, the Ohio Supreme Court would, as a matter of federal law, have the same authority as a federal court to rule that Ohio’s “no court” restriction is unconstitutional, at least in the context of a true redistricting impasse that threatens Ohio’s compliance with one-person-one-vote. After declaring Ohio’s “no court” restriction unconstitutional under the federal Constitution, the Ohio Supreme Court would then be free to take the action it deemed appropriate to put acceptable maps in place in Ohio in a timely fashion.
The Redistricting Commission’s actions, of course, are constitutionally unacceptable. They violate Ohioans’ rights under their own Constitution and threaten their rights under the federal Constitution. To summarize Justice Oliver Wendell Homes, rights exist only because of remedies. In the absence of meaningful relief, Ohioans simply possess no rights.
Professor Mark R. Brown is the Newton D. Baker/Baker and Hostetler Chair at Capital University Law School in Columbus, Ohio.
Suggested citation: Mark R. Brown, US Constitution Requires Ohio Supreme Court to Resolve Redistricting Stalemate, JURIST – Academic Commentary, March 2, 2022, https://www.jurist.org/commentary/2022/03/mark-brown-ohio-redistricting-stalemate/.
This article was prepared for publication by Katherine Gemmingen, Commentary Co-Managing Editor. Please direct any questions or comments to her at email@example.com
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