WIN, LOSE, DRAW: INSIDE OHIO’S REDISTRICTING BATTLE
Ohio Republican lawmakers submitted unconstitutional election maps five different times in order to run out the clock on fair redistricting, and they prevailed. A second primary this month cost taxpayers $20 million.
By Jim DeBrosse – August 15, 2022
What if they held an election and no one showed up? That was going to be the outcome of Ohio’s unprecedented second primary on August 2, warned Republican State Rep. Bill Seitz, whose safely gerrymandered district in conservative western Hamilton County looks like a giant Pac-Man about to devour English Woods.
In addition to the $20 million in taxpayer money being spent for the added primary, Seitz had wanted another $1 million for vote-by-mail request forms to be sent to all registered voters across the state. Without it, he told his fellow legislators in early June, voter turnout during one of Ohio’s most popular vacation periods will be pathetic. “My friends, you are looking at a primary in which you will be lucky to get 2 to 5 percent of the voters coming out.” For their unwillingness to spend the extra dollars to boost turnout, Seitz had nothing but scorn. [Turnout in Hamilton County on August 2 was 8 percent.]
His outrage is hard to justify given that the August primary’s price tag was a direct result of his own party’s delays in adopting a new state legislative map. Or that the new maps approved for both Congressional and General Assembly seats by Ohio’s GOP-dominated redistricting commission were found to be unconstitutionally partisan by the Ohio Supreme Court. Or, perhaps most egregious of all, that the new GOP-imposed maps defy 2015 and 2018 anti-gerrymandering amendments approved by more than 70 percent of Ohio voters.
Despite redistricting reforms that were decades in the making, Ohio Republicans once again succeeded in drawing the legislative maps to their advantage, thanks to months of strategic delays and bad faith negotiations and a timely assist by two Trump-appointed federal judges that enabled the tactics to work.
“We win again,” Seitz replied to a Tweet decrying the federal court ruling posted by David Pepper, former head of the Ohio Democratic Party and his favorite political sparring partner. Seitz went on: “Now I know it’s been a tough night for all you libs. Pour yourself a glass of warm milk and you will sleep better. The game is over and you lost.”
To most Ohioans, fair elections are more than a game, a fact those tasked with redrawing the state’s legislative districts seemed to recognize early in the process. Back in March, the Ohio Redistricting Commission—state House and Senate leaders from both parties, plus Gov. Mike DeWine, Auditor Keith Faber, and Secretary of State Frank LaRose—met for six consecutive days with independent experts to discuss maps that could be approved by the Ohio Supreme Court. The commission’s five Republicans and two Democrats appeared to be focused on compromise, and the process was livestreamed to the public in the name of transparency.
By the end of the meeting on the sixth day, the commission was just hours away from finalizing a map in line with the bipartisan fairness embodied in Ohio’s 2015 constitutional amendment. It had created the seven-person commission as a way to replace the previous system of having state legislators draw maps every 10 years that carved Ohio into a hellish jigsaw puzzle to keep the majority party in power for the next decade, often by slicing through counties, cities, and sometimes even neighborhoods to guarantee safe seats for the party in power.
Fair election activists, some of whom had fought for decades to end Ohio’s increasingly odious gerrymandered representation, were encouraged. The first drafts of Congressional and General Assembly maps had already been struck down by the Ohio Supreme Court as unconstitutional at that point, but the hope was that Republicans were finally absorbing the will of the voters. Could it mean an end to GOP secret meetings with their own data experts? An end to the GOP maps presented to the commission’s Democratic minority as a last-minute fait accompli, then rubber stamped with little discussion by the GOP majority in Columbus?
On March 28, the last day of the court’s deadline for a new map, the charade ended. The Republicans showed up at the commission meeting with a third revised state legislative map not much different from their second revision, again to be shoved down the Democratic members’ throats. In throwing out this map as well in an April 14 ruling, a 4–3 majority of the Ohio Supreme Court found “intent of partisan favoritism from the timeline that led to the commission’s decision to scrap the work of the independent map drawers in favor of a plan that included minimal changes to one already invalidated as unconstitutional.”
As final authority over the redistricting maps under the new reforms, the court ordered the commission to come up with an entirely new plan to meet constitutional requirements, setting a new deadline of May 6. Unfortunately, those same reforms didn’t allow the court to draw the maps if the commission failed again.
The ping-pong match of filings between commission and court began anew for the fifth time. The day of the April 14 ruling, the commission’s two Democratic members, Sen. Vernon Sykes (Akron) and House Minority Leader Allison Russo (Upper Arlington), began sending a series of letters to the group’s other members asking to reconvene with the independent mapmakers. Getting no response from their colleagues, the Democrats invited the Republicans anyway and called a meeting for April 25. But when Sykes and Russo showed up, the meeting room doors at the statehouse were locked. (A GOP spokesperson said the Democrats hadn’t filed a meeting request with the clerk’s office.)
Two days before the court’s May 6 deadline, the Republican commission members called a final meeting and adopted a fourth state legislative map identical to the third. In a move that showed just how lightly the Republican leadership was taking its orders from the Ohio Supreme Court, the two key Republican players, Senate Majority Leader Matt Huffman (Lima) and Speaker of the House Bob Cupp (also Lima), dropped off the commission on May 3 and May 4, respectively, and appointed junior members of the General Assembly to take their places. DeWine, Faber, and LaRose remained on the commission but in hands-off roles, as they’d been from the beginning.
The Ohio Supreme Court again said “no go” to the map in a May 25 ruling. The commission was now at the plate with five strikes against it—one Congressional map and four state legislative plans rejected by the state’s highest court in the space of four months. The court again ordered the commission to reconvene and submit a new plan by June 3. Republican commission members didn’t bother to meet again.
Enabling their defiance were a couple of court decisions that perhaps the Ohio GOP had been counting on all along: a state supreme court procedural delay that forced the adoption of an unconstitutional Congressional map for Ohio’s normal primary election on May 3, and a controversial intervention by Trump-appointed U.S. District Court judges that set up Ohio for an unconstitutional General Assembly map as well. When the legal and political dust settled in June, Ohio Republicans had retained control of most of their safe seats in both Congress and the Ohio General Assembly while corralling the state’s Democratic candidates into mostly competitive toss-up districts.
“It’s incredibly painful to think that we can’t trust our elected officials to follow the Ohio Constitution,” says Catherine Turcer, executive director of Common Cause Ohio, one of several non-partisan groups fighting for redistricting reform. “These are constitutional officers who took an oath and clearly violated it.” Worse, she says, the federal court’s 2–1 decision allowing the adoption of an invalidated General Assembly map rewarded the GOP for refusing to collaborate on a fair one. “It’s like parents saying, If you don’t make your bed, we’re going to give you ice cream. It’s completely galling.”
Phil Heimlich is a Republican who served on Cincinnati City Council and as Hamilton County Commissioner, and he challenged U.S. Rep. Warren Davidson in Ohio’s 8th Congressional District in the May primary, losing 67–33 percent. Heimlich says he wasn’t surprised that the commission’s Republican majority “turned to a Donald Trump tactic to rig the system so that the number of Democrats [in Ohio] are under-represented. In fairness, the Democrats in some states like New York have kind of done the same thing” to Republicans.
Nor was he surprised, Heimlich says, that the federal court ordered implementation of an unconstitutional map in favor of the GOP. The decision, he says, reflected the party’s frustrations with Ohio Supreme Court Chief Justice Maureen O’Connor, a Republican-endorsed judge who consistently cast the deciding vote on the state court in favor of fair redistricting. But by defying Ohio’s voter reforms and orders of the state’s highest court, he says Republicans further eroded Ohioans’ faith in the state election process just as Trumpism and The Big Lie have done to national elections. “What we need are Republicans and Democrats willing to stand up for free and fair elections and against partisan gerrymandering,” he says.
A key factor driving redistricting reform proponents is a fairness doctrine that legislative districts reflect the proportionality of Ohio’s voters over the last decade: 54 percent Republican and 46 percent Democrat. The commission’s second Congressional map, which is now in effect for the 2022 elections, gives control of 73 percent of the state’s 15 districts to Republicans and 13 percent to Democrats, with two districts rated as toss-ups. Ohio had 16 Congressional districts for the past decade, but is losing one based on results of the 2020 U.S. Census.
For Heimlich, the competitiveness of each voting district is more important than the number of districts divvied up to each party. Competition between parties in the general election, he says, is what pressures legislators to be responsive to all voters, not just their committed party base. “Otherwise, we continue this situation where the only thing candidates have to fear is a challenge from the right in the Republican primary and a challenge from the left in the Democratic primary, which leads to extremists like Marjorie Taylor Greene being elected.”
In the view of Pepper and many Democrats, Ohio still has no legally drawn redistricting maps. The federal court “basically made it so that, for the next two years, Ohioans will be living with a map that Ohio’s own Supreme Court has ruled unconstitutional multiple times,” he says. “We’re basically going to be living under an illegitimate representation.”
Election officials in at least 23 Ohio counties agree. In June, they signed on to a letter admonishing the Ohio Redistricting Commission and Secretary of State LaRose that the adopted maps are illegal. The officials told the Ohio Capital Journal that they’re continuing to collect signatures on the letter and say more time exists for the General Assembly to change election dates and methods before the November general election.
By tipping their hand in the April 20 ruling that the court would impose the commission’s third map on Ohio if Republicans and Democrats failed to reach an agreement, the federal judges essentially eliminated “the whole incentive for working things out,” Pepper says. “It’s the uncertainty of what will happen if you don’t [compromise with the other side]. In this case, the side they gave the victory to had violated their state’s highest court five times.”
For the last 10 years, gerrymandering in Ohio has guaranteed seats for a veto-proof supermajority of Republican state legislators, which has led to extremism and corruption among GOP officials in the statehouse, Pepper says. “In a robust democracy with competitive seats, when you face re-election you want to push forward ideas that are generally popular and to work with the other side” to pass legislation, he says. “And you don’t want to be corrupt, or you won’t be re-elected. All of those incentives in Ohio have been turned upside down” by gerrymandering.
The result of a decade of slam-dunk wins for Ohio’s Republican legislators, Pepper says, has been a downgrading of Ohio’s education system and infrastructure and an upsurge in statehouse corruption. Recent examples include the 2018 resignation of House Speaker Cliff Rosenberger for accepting overseas vacations from payday lending lobbyists, the 2021 expulsion of House Speaker Larry Householder on racketeering charges, and the ongoing investigation into the $61-million FirstEnergy bribery scandal, the largest in the state’s history.
On a positive note for fair election advocates, the Congressional map now in effect will add a potential Democratic district to the state mix—the 1st District seat held by Steve Chabot, which now includes all of the city of Cincinnati rather than just its more conservative western neighborhoods, but remains merged with staunchly Republican Warren County. On the other hand, the new map further tightens Brad Wenstrup’s grip on Ohio’s 2nd Congressional District by eliminating all of Cincinnati and its eastern suburbs and replacing them with additional rural voters in southeast Ohio.
What makes the redistricting brawl all the more surprising is that, just eight years ago, Ohio Republicans lauded themselves for reaching a compromise with Democrats that promised an end to gerrymandering. A senior aide to then-Gov. John Kasich tweeted a declaration of near-sainthood for party chieftains after the measure breezed through the General Assembly in 2015: “Ohio Republican Leaders deserve a ton of credit for breaking the cycle [of partisan districts] and potentially giving up power.” Even Huffman, a state rep involved in the bipartisan negotiations, was quoted in The Lima News at the time: “This system basically says we are going to have a system that you now have an incentive to take in account what the minority party wants.… All the people sitting at the table now have an incentive to compromise.”
Ohio voters endorsed a constitutional amendment for state legislative redistricting in 2015 with more than 71 percent of the vote and passed it in all 88 counties. They approved a similar reform measure for Congressional districts in 2018 with 75 percent of the vote, again passing in every county. But the incentives for compromise built into the law failed to work. The “carrot” was that both parties would be willing to reach an agreement in order to secure a 10-year map until the next U.S. Census. If they failed, a simple majority of the commission would approve a four-year map with built-in safeguards that included limits on slicing up cities and counties. Congressional redistricting requires that the map “not unduly favor or disfavor” a party or its incumbents. In addition, state legislative maps “shall correspond closely to the statewide preferences of the voters of Ohio” during the previous decade. As the “stick” for the reforms, the Ohio Supreme Court was supposed to have the final say in any disagreements.
The incentives clearly didn’t work in this map-drawing cycle. While the commission’s Democrats offered access to their mapmakers as well as early drafts of their maps, Republicans drew each of their maps without Democratic input and, according to court depositions, with their own mapmakers under the direction of just Huffman and Cupp.
Pepper believes the Republican fix was in from the very inception of the reform amendments in 2015 and 2018. At the time, he points out, the GOP had control not only of the General Assembly and governor’s office but the Ohio Supreme Court as well. “They’re the ones in those negotiations who insisted the Ohio Supreme Court have sole and exclusive jurisdiction over any challenge to the maps,” Pepper says. “Well, back then, they didn’t count on voters replacing three of their justices over the next two years with Democrats.” A run-out-the-clock strategy “is what you’d expect from people who, for 10 years, have been living in a world without accountability.”
As of late June, Louisiana was the only state that still hadn’t resolved its Congressional map. According to the FiveThirtyEight political research website, the outcome of the national redistricting fight has been a wash for both parties, but not necessarily a victory for voters wary of the country’s increasingly divisive poli tics. Democrats gained 15 solid seats and five competitive districts across the U.S. in 2022 Congressional races, while Republicans countered with the exact same gains. But the number of new truly competitive districts was zilch.
Multiple states, including Ohio, created redistricting commissions to supplement or supplant the role of state legislatures. So far, though, only Michigan and Colorado have succeeded in making their commissions truly independent of state politics, according to the library information service CQ Researcher. National Republican and Democratic redistricting committees have squared off in every state as a precursor to the 2022 midterm elections. The GOP needs a net gain of just a handful of seats in the U.S. House of Representatives to take control from Democrats.
Both Ohio Democrats and Republicans agree that, despite this year’s fiasco, the Ohio Supreme Court will ultimately decide how Ohio draws its election maps. Although it’s too late to block the GOP-gerrymandered maps for 2022, the Ohio ACLU has already filed a lawsuit to have fair maps in time for 2024. The outcome of that decision may depend on who replaces retiring Chief Justice O’Connor in November. Current justices Jennifer Brunner (a Democrat who voted against the GOP’s election maps) and Sharon Kennedy (a Republican who voted in favor of them) are facing off in that election.
If needed, says Turcer of Common Cause, fair election advocates are prepared to go back to Ohio’s voters to pass yet another constitutional amendment to give the Ohio Supreme Court more teeth for enforcing redistricting reforms. Or the new reforms could take the map-drawing powers away from politicians altogether and place them in the hands of an independent citizens’ commission, as Arizona and California have done.
“First, we need to see what the best practices are, what worked in other states and what didn’t,” Turcer says. “But when politicians are drunk on power, the clear thing to do is to take away their keys.”
An earlier version of this story ran on April 15, 2022.