Originally published on The Dispatch, by Harvest Prude
MANSFIELD, Ohio—A crowd of around 200 mingled in a spacious ballroom for Richland County Republican Party’s Lincoln Day Dinner earlier this month. Guests sporting red dresses or red ties chatted about the contentious GOP Senate primary in the state and local party politics at tables draped in white cloth and topped with tiny American flags. Rep. Jim Jordan gladhanded his way around the room.
“We got our district, we’re gonna run,” Jordan told The Dispatch in response to a question about his state’s redistricting merry-go-round.
For a time, it was not at all certain whether Jordan’s congressional primary—or other statewide primaries—would continue as scheduled on May 3.
That’s because the Ohio Redistricting Commission, a Republican-dominated body, is in a months-long standoff with the state Supreme Court. Since last September, the commission—and Ohio lawmakers—have voted to approve four different maps submitted by the commission. But each time, the state Supreme Court has rejected them as unconstitutional.
Ohio Secretary of State Frank LaRose opted to go forward with the May 3 primary, saying that one of the versions of the commission’s congressional maps is valid to use. But the legislative races for the Ohio Senate and Ohio House of Representatives, as well as some other local races, must wait to appear on a second primary ballot later in the year, once the legislative maps are finalized. The second primary will cost the state millions of dollars.
The fight over redistricting has created headaches for candidates, confused voters, and appalled good governance advocates—especially because it comes on the heels of ballot referendums, overwhelmingly passed by Ohio voters, that were designed to squelch partisan gerrymandering in the state.
In 2015, voters approved a measure creating a bipartisan commission to draw legislative districts. In 2018, they approved a measure establishing a a similar process for drawing congressional maps. It also amended the state constitution to require that the redistricting process include bipartisan cooperation and that maps must not favor one political party. The measure also established that a supermajority of the Ohio legislature must approve the maps—else they would be good for only for four years instead of 10.*
But in four rulings this year, the state’s seven-member Supreme Court has called the maps unconstitutional, with Republican Chief Justice Maureen O’Connor siding with the court’s three Democrats. The court has ordered the redistricting commission to produce a fifth set of maps by May 6 that will pass constitutional muster, but hopes are fading.
Gerrymandering remains a problem for the Buckeye State, experts told The Dispatch, because the constitutional reforms still left the final say in approving maps to partisan politicians. And the penalties for not passing fair maps—having to redo the work in four years—carries little threat.
Ohio’s particular reforms have always had critics. Progressive writer for the Daily Kos Stephen Wolf in 2018 called the efforts “fatally flawed,” noting that the change “still leaves one party in charge of the redistricting process.”
The current redistricting cycle lends credibility to the criticism.
“What we’ve seen happen in 2021 and 2022 is not what [voters] had in mind.” University of Akron political science professor David Brian Cohen told The Dispatch. “They’ve gotten a process which has been completely dominated by the majority party. The maps that the Republican party has drawn here in Ohio are even less fair, or less competitive, I should say, than the maps they drew 10 years ago.”
He added: “Gerrymandering—especially when it’s done surgically like it’s being done in Ohio—it’s just the perfect example of the politicians picking their voters and not the other way around.”
Nationally, the current redistricting cycle is yielding maps that look relatively balanced.
Republicans control 62 state legislative chambers, while Democrats control 36. In Alaska, control of the House is in the hands of a coalition. (Nebraska’s legislative branch is unicameral, but members are elected on a nonpartisan basis.) Republicans are also in charge of drawing 187 congressional districts, while Democrats have control of 75 this cycle. But despite this lopsided control, Democrats are not suffering heavy losses when it comes to districts’ partisan leanings.
In fact, according to an analysis by FiveThirtyEight, Democratic-leaning seats will increase by a net of 11 in comparison with the old maps. Meanwhile, Republican-leaning seats have dropped by six. (That’s just a comparison of the partisan lean of the seats, the analysis notes. It does not factor in incumbency and is also unlikely to dampen the good position Republicans are in to do well in the 2022 midterm elections.)
FiveThirtyEight’s analysis concludes that there will be around 220-223 Republican-leaning seats in the next Congress, and 212-215 Democratic-leaning seats.
The number of competitive seats has declined across the country—with FiveThirtyEight’s analysis noting that highly competitive districts have declined by around five. While some of the map remains unsettled, FiveThirtyEight predicted that this cycle of mapmaking could result in the fewest swing districts since 1996
But the map is shaping up to have some semblance of balance due to a few factors.
“It looks like the seat advantage coming out of redistricting this cycle is that neither party has as near as much advantage as one party or the other party has had in other cycles,” Kevin Johnson, executive director of the Election Reformers Network, told The Dispatch.
Courts have stepped in on aggressive gerrymanders in Maryland by Democrats and Republicans in North Carolina. In other states, litigation is ongoing.
And more states have handed partial or complete control of the process to independent redistricting commissions.
All About Redistricting, a project of Loyola Law School, has a helpful breakdown of how states handle redistricting: 27 states give the legislature control of the process. In three states, politician commissions—with members who hold elected office—control the process. Eight states have independent commissions. Six states have either backup commissions which get involved if a legislature fails to adopt a map by a certain deadline, or advisory commissions. Six states have only one congressional district, rendering redistricting unnecessary.
Arizona, California, Colorado, and Michigan have garnered praise for drawing maps fairer than in previous years and in comparison to states without commissions. Those states also had fewer “wasted” votes, which means votes that did not contribute to the candidate winning. Known as an efficiency gap, the concept measures whether a party had an advantage when it came to seeing votes result into seats.
The success of these commissions, Johnson said, has depended on how the bodies are set up.
“There have been degrees of reform across a number of states,” Johnson said. “The states that have done less well are states that have tried to effectively build half a bridge from control by the politically motivated legislature to control an independent body—states like New Mexico, Virginia, Ohio, New Jersey, New York all did some version of a half of a bridge. And you know, not surprisingly, you drive over a half a bridge, you fall off.”
In New Jersey, state legislators choose commissioners, yielding predictably partisan results with a map heavily favoring Democrats.
Ohio is another state that, according to Johnson, built only half a bridge and kept control vested in the partisan legislature.
“Nonpartisan redistricting commissions are a very popular idea,” Kevin Kosar, a senior fellow at the American Enterprise Institute told The Dispatch. “The real trick obviously, as we saw in Ohio, is how do you achieve it? Because the politicos don’t want to give up the power. Even if the law says something and the legislature acts contrary to the law, what are you going to do?”
Four of the seven members of Ohio’s redistricting commission are appointed by state politicians, with Republicans outnumbering Democrats 5-2.
The commission received detailed population information from the 2020 census in August 2021, revealing it would lose one of its 16 seats in the U.S. House of Representatives.
In September, it first approved maps on a party-line, 5-2 basis. Lawsuits resulted, and the state Supreme Court struck down the maps in a 4-3 ruling. It said to meet the constitutional requirements, map-drawers must try to distribute Ohio’s districts so that they more accurately reflect the state’s partisan composition, which is about 54 percent Republican and 46 percent Democrat.
Earlier versions of the maps favored Republicans winning 60 percent of House and Senate districts and gave Democrats very slim majorities in their districts, which would mean that in a bad year for Democrats, Republicans would be expected to pick up even more seats.
Republicans on the commission argue that the third map met constitutional requirements: 54 percent of the districts are Republican-leaning, with 46 percent favoring Democrats. Twenty-six districts favor Democrats by 3 percentage points or less. Meanwhile, only four Republican-leaning districts favor the GOP by fewer than 10 percentage points.
“The Republicans will argue that they now have more districts that are a little bit closer and up in the air but if you look at the numbers it’s not really true. The ones they claim are toss-up districts are still Republican-leaning districts,” Akron professor David B. Cohen told The Dispatch. “They’re trying to claim that they’re approaching that 54-46 split by making some Republican districts slightly less Republican. But if you look at the actual partisan voter index of these new districts, you know they’re still Republican-leaning districts that a Republican should win easily.”
In its April 14 opinion, the state Supreme Court also criticized the maps on the grounds that the districts were misleadingly labeled.
“There remains an aggregate asymmetry in the assignment of toss-up districts, demonstrating partisan bias,” the opinion reads. “Too many districts that were counted as Democratic districts are instead tossups, and that lack of proportionality violates Section 6(B)” of the Ohio Constitution.
The court also cited an analysis by Dr. Michael Latner, an expert on redistricting and gerrymandering with the Center for Science and Democracy at the Union of Concerned Scientists: “A small two percentage point shift in the electorate in favor of Republicans would be expected to wipe out 17 Democratic House seats and 6 Democratic Senate seats, giving Republicans 72% of House seats and 73% of Senate seats—a supermajority in both chambers. Equivalent shifts among voters in favor of Democrats would not yield any additional seats.”
After the third back-and-forth, the court told the commission to use independent map-drawing experts in its fourth try.
Commissioners initially did so, hiring outside experts: University of Florida professor Michael McDonald and the National Demographics Corp.’s Douglas Johnson. They also made the process public—one of the constitutional requirements—streaming the process on the Ohio Channel. But they once again voted to approve a map that was a slightly tweaked version of previously rejected maps instead of going with what the hired experts suggested.
“If the Ohio redistricting commission had followed the constitution they would have adopted a map a long time ago,” Richard Gunther, professor emeritus of political science at Ohio State University, told The Dispatch. He’s been involved in the reform efforts since 2005 and helped draft the anti-gerrymandering revision that made it into the Ohio constitution following the ballot measures.
Gunther described himself as “appalled” at the way the process has unfolded. He also noted that there is basically no enforcement mechanism at the court’s disposal. “So that’s why we’re at an impasse.”
“Bad reform doesn’t mean reform is not needed,” Johnson said. “It just means good reform is needed.”
There are signs the stalemate in Ohio may be about to break—and that gerrymandered maps will be left in the wake.
On Wednesday, a federal court gave the Ohio Redistricting Commission a May 28 deadline to redraw maps in a manner that will adhere to the constitutional requirements.
But the panel also forecast how it would resolve the conflict if the deadline passed unmet: Two of the judges, both Donald Trump-appointees, said they will pick a map—the commission’s third offering—that had previously been rejected by the Ohio Supreme Court. Judges also said they would order the second primary for the state house and senate elections to be held on August 2.
The state supreme court criticized those maps, approved by the Ohio Redistricting Commission on Feb. 24, for labeling many of the districts Democratic-leaning, when they are in fact closer to toss-up districts.
“Overall, in terms of total numbers, the Democrats do not have a snowball’s chance in hell of even coming close to a majority in the statehouse because, you know, with the maps as they are currently written, there is about 80 percent Republican dominance with total districts,” Cohen said.
With the federal court laying out how it will rule, there’s little incentive for Ohio’s commission to significantly change the maps, which brought celebrations from some state officials. Majority Floor Leader of the Ohio House Bill Seitz, a Republican, took to Twitter to crow over the result: “Now I know it’s been a tough night for all you libs,” he said. “The game is over and you lost.”