BY SUSAN TEBBEN
The case of congressional redistricting was heard by the Ohio Supreme Court on Tuesday, where arguments about reforms put in place by voters and the data used by the General Assembly to draw maps framed consideration of districts going forward.
Ben Stafford, an attorney representing the National Redistricting Action Fund’s challenge of the congressional maps approved in November, said the case centers on compliance with the constitutional reforms that revised the redistricting process, particularly the GOP majority’s use of partisanship in creating its map.
“This case is about how the General Assembly has thumbed its nose at these reforms and enacted a plan that palpably violates Article 19’s new anti-gerrymandering protections,” Stafford told the court.
Stafford said the 2021 enacted map has “extraordinary partisan skew,” with Republicans favored in 12 of 15 districts, amounting to 80% of congressional seats in the state. Using voting results as a starting point for analysis, as Stafford said should have been done, would have leveled out the district lean at 54% Republican, 46% Democrat, according to results of statewide races over the past decades.
“A plan where one party is favored to win 80% of the seats when it only wins 53 or 54% of that vote clearly favors that party,” Stafford said.
However, the attorney for the legislative leaders, Senate President Matt Huffman and House Speaker Bob Cupp, Phillip Strach, called the 2021 plan “the most constitutionally compliant of all plans before the General Assembly” because other plans presented “split more counties and other jurisdictions than the enacted plan.”
But Republican legislators who worked on drawing the maps also saw the redistricting process as a foregone conclusion, destined for a legal battle, according to Strach.
The attorney for Cupp and Huffman argued that based on the “political geography” of Ohio, the General Assembly could have drawn maps using no election or partisanship data whatsoever, and it still would have come up with a Republican majority, leading to accusations of GOP secrecy and scheming.
“And so, what the General Assembly decided this time was ‘look, we’re going to be sued no matter what, and so we’re going to make sure that we draw competitive districts,” Strach told the justices.
Strach was asked to address an expert witness for the map challengers in the case, a political scientist who ran the Ohio map through a redistricting program 5,000 times and never came up with the amount of Republican lean as the map approved by the state legislature.
The simulations were “deeply flawed,” Strach told the state’s high court, and dependent upon human intervention.
“At the end of the day, the computers draw what a human being tells it to draw, and so if you don’t tell the computer to use criteria that match what the General Assembly actually used, then what it will spit out is really just garbage,” Strach said. “It really is meaningless for any legal analysis.”
The idea of what data would be proper to use in redistricting was the subject of lengthy discussion during oral arguments on Tuesday, but the main conclusion attorneys on both sides came to was no database was better than another.
“Nobody agrees on what data to use,” Strach said. “It’s hard to use congressional districts data because it’s always changing. It’s easier to use statewide data.”
Challengers debated databases and which specific data to use, such as federal election results versus statewide results, but said the biggest problem with the 2021 plan was how map-drawers used the data they used.
Stafford said map creators for the GOP, namely Senate staffer Ray DiRossi and House mapmaker Blake Springhetti, had much more data than they let on publicly, but didn’t use it all in presenting the new map proposal.
“What was disclosed publicly was this cherry-picked measure, a measure designed to make the plan look more competitive than it actually was,” Stafford said.
Regardless of the measure or metric used, however, Stafford said the bias in the 2021 plan “remains the same.”
Supreme Court justices also jumped in on the debate of which data to use in forming congressional districts, with Justice Sharon Kennedy seemingly agreeing that the federal results made sense in drawing congressional districts.
“If you look at Ohio’s elections, and you look at your own datasets, more people turn out in Ohio to vote in federal elections than in statewide elections, by and large,” Kennedy said.
Justice Patrick DeWine spoke to the argument by map challengers who said the legislature erred in skipping the 2014 election results rather than using all election results for the last 10 years. DeWine said because the 2014 election was an election “unlike any other we’ve had in Ohio,” specifically the landslide victory by former governor John Kasich over Democratic challenger Ed Fitzgerald, it might not be prudent to include that data.
“I’m not sure which data set is best, I’m not sure the court could pick that, but it doesn’t seem immediately obvious to me that including several statewide elections in a year that was … probably the farthest from the norm we’ve had in Ohio in the last couple decades would make the data a lot better,” DeWine said.
Other justices explored the idea that reforms of the redistricting should have been the guideposts for mapmakers over database manipulation.
Chief Justice Maureen O’Connor posed the idea that the “intervening factor” in deciding how to draw maps was “the vote of the people.”
Strach argued that the previous map passed in 2011 and highly criticized for a lack of public accountability “was never overruled,” and O’Connor jumped in.
“Didn’t the people overrule it? Maybe not overrule it in front of us or another court, but the people in their vote overruled what had been done up to that point, did they not?”
Justice Jennifer Brunner touched on minority representation in redistricting, asking whether keeping to the constitution in terms of splits and keeping counties whole overrode the requirement to protect minority voting rights, specifically in Hamilton County.
Strach argued that under the 14th Amendment if the General Assembly had considered race, it would have violated “racial gerrymandering” prohibitions unless there was a “sufficient reason” to redraw districts, including a minimum of 50% Black population required to combine a district.
“There’s been no showing in this case, no allegation by anyone even in the legislative process that such a district could have been drawn, and so using race in Hamilton County would have violated federal law in this case, and that’s why it wasn’t done,” Strach said.
Just as it did in the legislative redistricting case, the court pondered the next steps if the map was rejected as violations of the constitution.
When Strach said being found in violation of the constitution would be “the end of the story” for congressional maps, O’Connor countered that by saying “it could go back to the drawing board,” something Strach said “could go on for quite a bit” or be taken over by federal courts.
