All 16 districts of Ohio’s congressional map are unconstitutional, a federal court has ruled in overturning a map that heavily favored Republican candidates over Democrats.
The Republican majority in the Ohio state legislature worked with “national Republican operatives” to gerrymander the voter map in a way that would ensure the election of 12 Republican representatives and four Democrats to Congress, Circuit Judge Karen Moore said for a three-judge panel.
“Invidious partisan intent” permeated the redistricting process in 2011, she said.
The decision is the latest in a string of state and federal courts decisions—in Maryland, Michigan, North Carolina, Pennsylvania, Wisconsin, and now Ohio—striking down maps that entrench politicians of one party over another.
The Supreme Court has long said that excessive partisanship in the redistricting process can violate the Constitution, but it has struggled for decades to come up with a neutral and manageable way to police partisan considerations in a process that is inherently political. The court is currently considering that question in two challenges arising from the Maryland and North Carolina cases.
You now have six state and federal courts in a row “that have found partisan gerrymandering claims not at all hard to decide,” the Brennan Center’s Michael Li said. The Brennan Center is a progressive public policy institute that focuses on democracy and justice.
These lower court decisions are proof that “while the Supreme Court continues to debate the issue, the lower courts have found a way to identify—and invalidate—extreme gerrymanders,” University of Chicago law professor Nicholas Stephanopoulos wrote in a blog post after a federal court struck down voting districts in Michigan.
“The only people who still seem to think it might be hard are the Justices of the Supreme Court—or at least certain of them,” Li said.
But while the Ohio decision continues the trend that’s developing in the lower courts, Ned Foley, who heads the election law program at Ohio State University, said he’d be surprised if it alone changed any of the justices’ minds.
The cases were argued back in March, and so the justices have already taken their preliminary votes and are presumably drafting their opinions, Foley said.
So while the growing number of lower court decisions may cause the justices to pause before closing the door on judicial intervention, ultimately it’s up to the Supreme Court to decide if federal courts can get involved, he said.
Partisan gerrymandering has tended to split the high court along ideological lines, with conservatives arguing that the issue should be left to the political branches and liberals saying that courts must step in to provide a meaningful fix.
If the justices split 5-4 in the current cases before the court with the conservatives in the majority, it could undo wins in federal court that have tended to favor Democrats.
To be sure, both political parties have used partisan gerrymandering to their advantage. But big gains in the 2010 midterms for Republicans and recent technological advances in district line drawing have given Republicans significant advantages from maps after the most recent cycle of map-drawing.
Packing & Cracking
In the May 3 decision, the court said the “packing and cracking” method used in the redrawing process had no legitimate justification other than to ensure safe, reliable elections of GOP candidates and to dilute votes for Democratic candidates. The map therefore violates Democratic voter’s rights to the freedom of association, Moore said.
Portions of Michigan’s election map were ruled unconstitutional on similar grounds last month. Michigan state legislators worked with national party officials to create the Republican-favored districts in that case as well.
Ohio can’t carry out an election with this map and must draw up a new one before the 2020 election cycle, Moore said.
Typically sitting at the U.S. Court of Appeals for the Sixth Circuit, Moore was joined in the decision by District Judges Timothy Black and Michael Watson at the U.S. District Court for the Southern District of Ohio.
The case is Ohio A. Philip Randolph Inst. v. Householder, S.D. Ohio, No. 18-cv-00357, 5/3/19.