It is fortuitous that a General Assembly session that began with the Ohio Supreme Court narrowly approving the heavily Republican-leaning state legislative maps in a 4-3 decision will conclude with a bi-partisan plan to change the rules governing how Ohio will redistrict in the future. This month, Am.Sub.H.J.R. 12 (Huffman/Sykes), a bi-partisan proposal to revamp the Ohio Constitution's method of drawing Ohio's legislative districts, passed the Ohio House and Senate and now will require statewide voter approval in November 2015 to become effective for the next redistricting process.
Over the last 13 months, I've twice highlighted Ohio's redistricting concerns, the last of which in the Kegler Brown's post-election report, where we predicted the issue would make the ballot (although, admittedly, during a future General Assembly after a formal recommendation from the Constitutional Modernization Commission). Below is an overview with as little personal opinion as possible.
So What's Reapportionment and Redistricting Anyway?
After each decennial census, each state undertakes a reapportionment and redistricting process pursuant to which designated persons draw new legislative boundaries for each of the U.S. House of Representatives, the Ohio House of Representatives (99 total districts) and the Ohio Senate (33 total districts consisting of three contiguous Ohio House districts combined). Reapportionment begins by taking the state's total population and dividing it by 99 to obtain a ratio of representation, i.e., the target population for each House district. That's the easy part.
The hard part – redistricting – is determining what county, city, village and township residents will become part of a specific district within that target population. It is primarily a political and legislative process, with guidelines and priorities specified in the Ohio Constitution, Article XI. For Congressional redistricting, the Ohio General Assembly keeps that responsibility and passes a bill for the Governor's signature as with any ordinary bill.
State legislative redistricting, however, is currently assigned to the Ohio Apportionment Board consisting of the Governor, Secretary of State, State Auditor and two others appointed by each of the elected legislative party leaders, jointly, in both the House and Senate. Practically speaking, the political party that controls two of the key statewide executive offices on the Board (Governor, Auditor and Secretary of State) controls the redistricting process.
What's in the Proposed Constitutional Amendment?
The statewide proposal seeks to change how Ohio redistricts state legislative districts – not Congressional districts. Among other things, Am.Sub.H.J.R.12 seeks to: (a) expand the number of individuals empowered to participate in that process by two (each of the four party leaders in the General Assembly having 1 selection); (b) change the timelines in which to adopt a final plan; (c) specify a procedure; and (d) encourage bi-partisan support for the ultimate plan adopted.
Generally, the proposal would require the Governor to convene the seven-member Redistricting Commission – no longer the Apportionment Board – beginning in 2021, to draw new districts and select a final plan by mid-September of that year. A General Assembly district plan adopted by a majority vote that includes at least two members who represent each of the two largest political parties represented in the General Assembly (i.e., 1 Republican/1 Democrat) would, barring an intervening court order invalidating the plan, take effect after filing it with the Secretary of State's office, and the plan would remain in effect until the next year ending in the numeral 1, i.e., for 10 years.
But if the majority vote approving the plan does not include members of each of the two largest political parties, the plan remains in effect only until the earlier of two general elections for the Ohio House of Representatives having occurred under the plan (i.e., four years), a year ending in the numeral 1, or a court order invalidating the plan. If this occurs, the Commission must include with the adopted plan a detailed statement explaining partisan voter preferences, and then the Commission will repeat the process of adopting a plan using the same boundary data as used for the previous plan, but the plan then-adopted would likely be the apportionment plan for the next six years.
The proposal, similar to the current provisions, includes specific rules on district population requirements, and general and specific priority requirements for drawing House and Senate districts regarding counties, municipalities, villages, townships and the splitting of each when necessary. The Constitution would: (a) include aspirational goals to prevent political gerrymandering; (b) seek compactness of districts; and (c) seek to obtain a statewide proportion of districts having political leanings that correspond closely to the statewide preferences of Ohio voters.
Unlike current rules, there would be no requirement that every district be compact. But to the extent that it is impossible to comply with each of the requirements in drawing districts, the proposal would permit the Commission to commit the fewest possible violations and to further require an explanatory statement as to why strict compliance could not be achieved.
The proposed amendment curiously requires the Commission to comply with the U.S. Constitution and federal law, which is a compromise of language from an earlier version of the bill explicitly incorporating protection of minority voting rights into the Constitution. Presumably, the proposed amendment still incorporates the Voting Rights Act, which prevents racial discrimination and dilution of minority voting rights, but also accommodates for the U.S. Supreme Court's often-varied shift in approach towards the civil rights legislation.
Finally, the Supreme Court would retain exclusive, original jurisdiction over a court challenge to the plan. However, the proposal includes language prohibiting the court from implementing or enforcing any plan that the Commission has not approved, prohibits the Supreme Court from ordering the Commission to adopt a particular plan or draw or particular district, prescribes the available remedies in the event the Supreme Court determines an adopted plan does not comply with the constitutional district standards, and specifies the orders that the court much issue to the Commission to correct any violations, among a host of other guidelines.
Is this a Good Proposal to Amend Our State Constitution?
Currently, Republicans control all five statewide executive offices, both chambers of the General Assembly by substantial majorities, six of the seven seats on the Supreme Court and 14 of 16 Congressional seats. In fact, some legislators argued that Congressional redistricting should be included in a comprehensive reformation of the process. So why would Republicans support a change that could result in lost control, or Democrats support a plan that is more aspirational than mandatory in key areas and limits the powers on the only bastion of neutral oversight – the Supreme Court?
Over the last three redistricting cycles, Democrats controlled the Apportionment Board once and Republicans controlled the last two. The winner-take-all approaches of the controlling party has resulted in extreme partisanship within the legislative bodies, and a majority of the districts are not competitive in the general elections. The Supreme Court even noted less than two years ago that the Ohio Constitution does not require political neutrality, competitive fairness or even representational fairness.
Arguably, the proposal weakens the executive and judicial branches and strengthens the legislative branch. Instead of the three elected statewide executives each having 20 percent of the voting power on an Apportionment Board, each decreases to 14.3 percent with the conceivable added burden of convincing an opposite-party member to approve a plan. Likewise, the Supreme Court's role of oversight, which currently includes inherent flexibility couched in "equity" and traditional remedies, would be limited by the proposal's prescription of remedies. Meanwhile, the legislative branch increases its presence and voting power from 40 percent to 57 percent (ignoring the partisan alignment and the general prohibition from active legislators occupying multiple public offices in Ohio Const., Art. II, Sec. 4).
As one of only a few lawyers who has litigated against the last two state redistricting plans and a virtual life-long Ohioan, I am encouraged to see better rules, principles and articulated goals to reduce blatant gerrymandering, to increase representational fairness and to recognize that partisan gamesmanship should have some limits. That's a positive.
The administration of the proposal, if passed, is key. Contrary to a common proverbial phrase, the public wants to see how the sausage is made. The architects who apply the new rules to create any legislative plan for future consideration must work openly and be subject to public scrutiny. New rules are of no consequence if the persons drawing the lines or those charged with applying the principles mandated by the people of the state ignore the whole point of the exercise. After all, redistricting should be a predictable process. Ultimately, the voters have to decide whether this plan is better than the current plan – not whether it is the best plan.