Ben Martin, Associate Member, University of Cincinnati College of Law
Amid a political landscape marred by extreme division and distrust, Ohioans spoke with a surprisingly singular voice in 2018: no more partisan gerrymandering. Born from this sentiment, Article XIX of the Ohio Constitution established clear rules for creating congressional district plans. Such plans require either bipartisan support for future maps or, at a minimum, the creation of maps that did not “unduly favor” any party.
What could have been a victory for bipartisanship and the more-perfect expression of democracy ran aground almost immediately when on November 20, 2021, Governor Mike DeWine signed a new highly-gerrymandered congressional district map—2021 Sub.S.B. No. 258 (“S.B. 258”)—into law. Critics of the new map were thrown a win, however, in Adams v. DeWine when the Supreme Court of Ohio ruled that the new map violated Article XIX, and that the Supreme Court of Ohio did not have to take the General Assembly’s word that the map did not violate. The State of Ohio argued both that Article XIX failed to create a judicially manageable standard, and that the standard the General Assembly had chosen—the creation of “competitive districts”—would satisfy the amendment’s criteria. The State’s argument begs the question: if a state court cannot stop partisan gerrymandering pursuant to a constitutional amendment designed to prevent it, then who can?
A. Article XIX’s Mechanics
Article XIX, Section 1 establishes four basic possibilities for the creation of a districting plan. First, the General Assembly has until the end of September to pass a plan which receives votes from three-fifths of each House including votes from half of the Democratic and Republican party members of each house. Second, if the General Assembly misses that deadline, the Ohio redistricting commission must pass a plan by the end of October receiving votes from four out of seven members, including at least two votes from Democrats and two from Republicans. Third, if the commission fails to pass a plan, the General Assembly then has until the end of November to pass a plan receiving votes from three-fifths of both houses and at least one-third of all Democrats and Republicans. Finally, the General Assembly can, by the end of November, pass a plan with a simple majority in each house. This route, however, lacking in the bipartisan support mandated by Ohioans, would last for only four years and comes with additional constraints. Specifically, the amendment states that the General Assembly shall not pass a plan that “unduly favors or disfavors a political party” or that “unduly splits governmental units.”
B. Bad Faith in the General Assembly
When the 2020 census was completed, Ohio lost one of its sixteen previous seats, leaving it with fifteen districts to draw. The end of September came, and the General Assembly had failed to pass a plan with only two proposed plans being introduced—both from Democrats. October 31 came and went with the Ohio redistricting commission holding only a single meeting and passing no plan. Three days after the commission’s deadline, Senate Republicans introduced S.B. 258. Following party line votes, S.B. 258 was passed and signed into law—and challenged in court soon after.
C. Adams v. DeWine: What is the Standard and Who Decides?
Taking their cue from the Supreme Court of the United States’ holding in Rucho v. Common Cause, the State argued initially that Article XIX’s “unduly favor” provision failed to create a judicially manageable standard. As a result, the State suggested that the General Assembly had sole, unreviewable discretion to decide if the “unduly favors” standard had been met. The majority in Adams rejected this argument. First, unlike the Federal Constitution, the Ohio Constitution has an explicit provision forbidding a map, passed by simple majority, that “unduly favor[s]” a political party. This, along with Article XIX, Section 3 having given the Ohio Supreme Court “exclusive, original jurisdiction in all cases arising” under Article XIX, was enough for the majority to find that the Ohio Constitution granted the Ohio Supreme Court authority to consider a partisan gerrymandering claim.
While both the majority and dissent agreed that Article XIX did provide a standard for the court to consider, the remainder of the majority’s debate with the dissent centered around the definition of “unduly favor.” Ultimately, a majority of the Court determined that Article XIX prohibits a map, passed by simple majority, that favors a party “to a degree that is in excess of, or unwarranted by, the application of [Article XIX, Section 2’s] and [Article XIX Section 1(C)(3)(c)’s] specific line-drawing requirements to Ohio’s natural political geography.” A map can disfavor a political party only to the extent that would naturally result from the “application of neutral criteria.”
The dissent, however, believed that the majority approach failed to provide a workable standard unless a baseline was provided against which to measure partisan favoritism. The dissent accused the majority of establishing the baseline of “proportional representation”—a system where each party would receive roughly equal representation in a legislative body based on its proportion of the overall vote. According to the dissent, Article XIX did not contain any guarantee of proportional representation and instead the majority had “substituted its own sense of fairness for the text of Article XIX.” Viewing map-making as highly discretionary, the dissent instead favored a deferential approach, and believed that the General Assembly’s decision to create “competitive” districts was a valid consideration that could be pursued. Determining that creating competitive districts is a valid consideration for map making, the dissent concluded that defining what constitutes a “competitive district” is a policy decision best left to the legislature.
The dissenting opinion in Adams was eager to take the teeth out of the amendment, as it was passed with the understanding that those tasked with drawing districting maps have not historically acted in good faith. By deferring to the General Assembly’s purported goal of creating “competitive districts,” the General Assembly’s definition of competitive, and the General Assembly’s determination of what data to use to establish competitiveness, the dissent leaves the people of Ohio with a Constitutional provision that does little other than tell the legislature that it must draw a new gerrymandered map every four years.
As the Chief Justice noted in her dissent, however, “competitiveness” is not written into the Ohio Constitution. While proportional representation also is not mandated by Article XIX, the majority and concurring opinions are clear that they do not rely solely on it as a factor. Challengers to the General Assembly’s map enlisted multiple experts who reviewed or generated thousands of maps using both federal and state election datasets to determine that the map was an extreme outlier.
The dissent’s discounting of the mountain of evidence discussed by the majority and its choice to embrace the State’s “competitiveness” standard is alarming when the full effect of gerrymandering is considered. The legislatures and consultants who choose to engage in gerrymandering know how to mask partisan maps as complying with neutral criteria. Strategists know how to create fixed maps that appear “competitive” when, in reality, they are far from it. Given the already present difficulty in detecting gerrymandering in some instances, the dissent’s argument that the court should defer to legislative “policy” decisions that are clearly in furtherance of partisan-gerrymandering should be grounds for great concern.
The Ohio people were clear. The General Assembly explicitly chose not to listen. Fortunately, the Supreme Court of Ohio made the correct determination that the judiciary has a role in interpreting Article XIX—a role that does not require blind deference to the purported policy decisions of a partisan legislature. The judiciary should continue to step up to give meaning and strength to Article XIX—it will certainly be called on to do so in the not-so-distant future. If the court does not take a stand, the Ohio people will be left powerless, with no remedy in the face of an already critically disproportionate state legislature that has itself been clear: no one can stop us from gerrymandering.
 Adams v. DeWine, 2022-Ohio-89, ¶ 3.
 Ohio Constitution, Article XIX, Section 1.
 Adams, 2022-Ohio-89 at ¶ 4.
 Id. at 5.
 Id. at ¶ 30, 45.
 Ohio Constitution, Article XIX, Section 1(A)-(C).
 Ohio Constitution, Article XIX, Section 1(A). A plan passed this way would last for ten years.
 Ohio Constitution, Article XIX, Section 1(B). A plan passed this way would last ten years.
 Ohio Constitution, Article XIX, Section 1(C)(1)-(2). A plan passed this way would also last ten years.
 Ohio Constitution, Article XIX, Section 1(C)(1), (3).
 Ohio Constitution, Article XIX, Section 1(C)(3)(a)-(b).
 Adams, 2022-Ohio-89 at ¶ 13.
 Id. at ¶ 14.
 Id. at ¶¶ 21, 23.
 Id. at ¶ 30. In Rucho v. Common Cause, 139 S.Ct. 2484 (2019), the United States Supreme Court officially closed the federal courthouse doors to partisan gerrymandering claims.
 Id. at ¶ 32.
 Id. at ¶ 40.
 Id. at ¶ 139.
 Id. at ¶ 144.
 Id. at ¶ 161.
 Id. at ¶ 182.
 Id. at ¶ 105 (O’Connor, J., concurring).
 Id. at ¶¶ 37, 104.
 Id. at ¶¶ 46-51.
 Miles Parks, Redistricting Guru’s Hard Drives Could Mean Legal, Political Woes for GOP, NPR (June 7, 2019), https://www.npr.org/2019/06/06/730260511/redistricting-gurus-hard-drives-could-mean-legal-political-woes-for-gop (accessed Jan. 3, 2022). This NPR article cited by the majority discusses the way strategists gerrymander while attempting to avoid legal protections against it.