By Dan Vicuna, Common Cause’s National Redistricting Manager
Redistricting reformers in Ohio and across the nation were deeply disappointed in the recent decisions in Rucho v. Common Cause and Lamone v. Benisek: the majority of the court failed to defend democratic principles when it found that federal courts do not have the legal tools needed to adjudicate partisan gerrymandering claims. As a result, plaintiffs cannot challenge maps in federal court using a partisan gerrymandering claim.. Nevertheless, these decisions did not give legislators a blank check to do whatever they want when it comes to redrawing district lines.
Here in Ohio we have provisions in place that will protect us from the worst distortions of gerrymandering. We recently changed the Ohio Constitution to address both state legislative (2015) and congressional (2018) redistricting reform. New rules keeping communities together and creating greater transparency mean the mapmaking process in 2021 will be much different from how it was in 2011, with more guardrails and protections for voters versus politicians.
In the future (as in the past), state courts will still be able to step in to determine whether congressional, state legislative, or other districts violate the state constitution. One such lawsuit succeeded when the Pennsylvania Supreme Court ordered Pennsylvania’s congressional map to be redrawn before the 2018 election. Common Cause is currently suing in North Carolina state court in a challenge to North Carolina General Assembly districts under the North Carolina Constitution.
Some state constitutions, like the Ohio Constitution, contain language to protect voters that the U.S. Constitution does not contain. See a list of states with language in their state constitutions that could provide stronger voting rights protections. State court interpretations of state constitutions are generally not reviewable by the U.S. Supreme Court.
Here are some additional legal standards that will continue to give voters a measure of protection against the rigging of district lines.
Racial gerrymandering (14th Amendment): When race is the predominant consideration in drawing district lines such that the mapmaker subordinates race-neutral districting principles to racial considerations, a court must apply strict scrutiny. This means that the mapmaker must demonstrate that the use of race was narrowly tailored to achieve a compelling state interest. If the mapmaker cannot do so, the map violates the equal protection clause of the 14thAmendment of the U.S. Constitution. Relevant case law includes Shaw v. Reno, Shaw v. Hunt, and Miller v. Johnson, and Alabama Legislative Black Caucus v. Alabama.
Majority-Minority Districts (Voting Rights Act, section 2): Gingles v. Thonburg requires mapmakers to draw majority-minority districts in a community when:
Intentional discrimination (15th Amendment): The 15th Amendment prohibits intentional discrimination in voting rules under Gomillion v. Lightfoot.
Are you still concerned about gerrymandering? Here’s something you can do: Take the End Gerrymandering Pledge and encourage mapmakers to do so as well. This will help set the stage for productive mapmaking in 2021 that focuses on the voters, rather than partisan advantage.
Click here for Take the Pledge to End Gerrymandering Resource Kit.
Common Cause Ohio staff assisted with the creation of the blog post.
BREAKING: On June 27, the US Supreme Court ruled that the federal judiciary cannot rein in partisan gerrymandering.
The US Supreme Court had the opportunity to end partisan gerrymandering once and for all but instead a narrow majority chose to wash their hands of any responsibility for stopping rigged elections.
Chief Justice John Roberts writing for the majority: “We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.”
Justice Elena Kagan's dissent: "The partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people."
Ohio is a step ahead
While the decision is both angering and incredibly sad, we here in Ohio are feeling grateful that we have already passed restrictions on gerrymandering for both the state legislature and US Congress. Because of the hard work of Fair Districts volunteers and advocates, we passed anti-gerrymandering legislation in 2015 and 2018. When district lines are redrawn in 2021, the divided communities and grotesque distortions of the current map will not be allowed.
Unfortunately, because of the SCOTUS decision announced today, Ohio will have to wait until 2022 for fairer district lines. Ohio voters reined in gerrymandering and new rules will be in place for both the state legislature and Congress. Unfortunately, a ruling from the Supreme Court that partisan gerrymandering is unconstitutional would have strengthened our reforms and meant new maps in 2020 because of the challenge to Ohio's congressional gerrymander (APRI Ohio v. Householder).
Nevertheless, we still need to keep up the pressure on our legislators to let them know we are watching, and we demand Fair Maps!
READ THE DECISION
Thanks to everyone for joining our Tuesday evening webinar about the A. Philip Randolph Institute v. Householder gerrymandering lawsuit. If you weren't able to be on the call, here's a link to a recording. You can also look at the presentation slides HERE.
Breaking news! On June 5, the US Supreme Court granted the State of Ohio's request for a delay of the appeal process until July 19, 2019 (a three week extension). Although the plaintiffs would have preferred no extension, and fought against one, there is still time for making a map for the 2020 election.
You can stay up to date about all the latest twists and turns in the court case (and also see a full timeline) on the Fair Districts website.
An important decision is coming soon: We expect to hear about the NC gerrymandering (Rucho v. Common Cause) and the MD gerrymandering (Lamone v. Benisek) sometime this month. The highest court in the land has the opportunity to declare gerrymandering unconstitutional and lay down some ground rules. However, it is extremely difficult to know which way they will go and how that will affect Ohio’s case.
Here are some rough examples to illustrate the difficulty of making a solid prediction:
1. The US Supreme Court (SCOTUS) could find the maps are illegally gerrymandered but decides there is no judicial remedy;
2. SCOTUS could determines that gerrymandering isn't unconstitutional in general;
3. SCOTUS could find one of the maps unconstitutional and rule in such a narrow way that the decision doesn't impact other states;
4. SCOTUS could find both maps unconstitutional and rule in such a narrow way that the decision doesn't impact other states;
5. SCOTUS could find some districts unconstitutional and the ruling is truly narrow;
6. SCOTUS could punt, and rule on some other ground that leaves vital questions still unanswered, as it did last June in the Wisconsin case, or
7. We could win big! SCOTUS could rule gerrymandering is unconstitutional and establish standards to identify gerrymandering. It's hard to be patient while we wait to hear the next steps for the Ohio gerrymandering case, but we will do everything we can to keep you up-to-date.
Take the Pledge: During the presentation we encouraged participants to get involved by signing the End Gerrymandering pledge and urging their Ohio legislators to do the same. We hope everyone will take the pledge and continue to spread the word about the need to support #FairMaps. Here are the links you'll need:
Support the Census: Stay up to date on the Census via the Ohio Census Advocacy Coalition:
On May 24, the US Supreme Court granted the State of Ohio's request for a delay. The highest court should announce rulings in Rucho v. Common Cause (challenging a Republican gerrymander of North Carolina) and Lamone v. Benisek (challenging a Democratic gerrymander of Maryland) before the end of June. These decisions should provide direction for Ohio's gerrymandering case.
Earlier this month, a federal panel of three judges declared Ohio's congressional districts unconstitutional:
"We join the other federal courts that have held partisan gerrymandering unconstitutional and developed substantially similar standards for adjudicating such claims. We are convinced by the evidence that this partisan gerrymander was intentional and effective and that no legitimate justification accounts for its extremity."
READ THE DECISION
COMPILATION OF ALL THE FILINGS ABOUT A. PHILIP RANDOLF INSTITUTE v. HOUSEHOLDER
Are you interested in learning more? Sign up for a webinar on June 4 at 6:30pm.
Have you wondered what is going on with the gerrymandering court case? On Tuesday, June 4 from 6:30-7:30pm the Fair Districts = Fair Coalition is holding a webinar to walk us through the May 3 decision and talk about the next steps and ways to get engaged.
Freda Levenson of the ACLU of Ohio, Jen Miller of the League of Women Voters of Ohio, and Andre Washington from A. Philip Randolph Institute of Ohio will provide an overview of what happened during the trial and what to expect next. Catherine Turcer of Common Cause Ohio and Camille Wimbish of Ohio Voice will explore ways to get involved.
Click here to register for the June 4 webinar.
A little background:
On May 3, a panel of judges declared the current congressional map an unconstitutional partisan gerrymander and ordered the state legislature to redraw district lines by June 14.
A. Philip Randolph Institute of Ohio v. Householder went to trial in March in Cincinnati before a panel of three federal judges: Timothy Black (Cincinnati), Karen Nelson Moore (Cleveland), and Michael Watson (Columbus). The plaintiffs including the League of Women Voters of Ohio and voters in all 16 congressional districts were represented by ACLU of Ohio, and Covington & Burling.
The state of Ohio appealed the judges’ ruling that tossed out the current congressional maps to the US Supreme Court and the state has called for the Supreme Court to suspend the federal judges’ order to redraw congressional districts.
Click here to register for the June 4 webinar.
Can't make it? Don't worry. We are going to record it.
If you have any questions or suggestions, send an email to email@example.com.
By Ann Henkener and Jen Miller of the League of Women Voters of Ohio
BREAKING: On May 9, a three judge panel of the US District Court for the Southern District of Ohio denied the State of Ohio's request to put their order to redraw congressional districts on hold.
Overview of the Gerrymandering Case
On May 3, the US District Court for the Southern District of Ohio announced its ruling in a case brought by Ohio A. Philip Randolph Institute, League of Women Voters of Ohio, and individuals from each Congressional district in Ohio.
ACLU of Ohio served as chief counsel, and the plaintiffs sued the Ohio General Assembly over the congressional districts they drew in 2011. The goal of A. Philip Randolph v. Householder is simple: fair, constitutional maps for the 2020 election, and the US District Court agreed.
Specifically, the federal court decided that Ohio’s state legislature intended to draw maps that electorally disadvantaged the supporters of the political party that lacked control of the mapmaking process. The court determined that the maps were effective in fulfilling that intent – Republicans consistently won the same 12 of the 16 Congressional seats no matter what the voters did.
The US District Court ruled that there was no reason except gaining a partisan advantage that would explain why the political party in power kept winning 75% of the seats, despite only getting a little over 50% of the state’s votes each election. Finally, the court decided that the current map is an unconstitutional partisan gerrymander and ordered a replacement map to be drawn before the 2020 election.
The District Court’s opinion completely validates every one of the plaintiff’s claims about gerrymandering and the unfairness of Ohio’s congressional map. Every individual and organizational plaintiff was found to have standing; every expert methodology was given consideration; every district was found to be gerrymandered for partisan advantage.
All of the state’s rationalizations and defenses were considered by the federal judges and rejected: the map was not bipartisan; it was not motivated by the need to comply with the Voting Rights Act; and it was not the result of “incumbency protection” or the state’s natural political geography. Of course, it is impossible to know how the US Supreme Court will ultimately rule, but this decisive victory in the trial court adds significantly to the momentum for new, fair maps that is building across the country.
READ ABOUT THE 2011 MAPMAKING
The federal court ordered the state legislature to pass a new plan or congressional map no later than June 14, 2019 and send it to the court within 7 days. If the plaintiffs believe that plan is still unconstitutional or is still gerrymandered, they will need to file objections within 7 days. The District Court will then decide if the newly enacted map is constitutional. If the court decides that the Ohio General Assembly didn’t pass a constitutional map, the court can appoint a Special Master to draw a map.
The parties to the case are also required to file briefs by June 3 discussing whether map drawn by mapping expert William Cooper should be adopted for Election 2020. Mr. Cooper was a witness for the plaintiffs and he presented a map to the District Court, which meets constitutional standards while also abiding by standards set forth in the May 2018 redistricting reform ballot measure.
On May 6, the Ohio General Assembly and the Republican intervenors filed notices of appeal to the US Supreme Court.
They also filed a motion in the District Court asking it to stay its order or asking permission to wait until the US Supreme Court decision in similar cases from Maryland and North Carolina are announced.
The District Court will likely deny the stay and the defendants will ask the US Supreme Court for an emergency stay, which the Supreme Court may grant.
It is not clear exactly what will happen. A lot will depend on the US Supreme Court cases from Maryland (a Democratic gerrymander) and North Carolina (a Republican gerrymander). The US Supreme Court has not yet declared partisan gerrymandering unconstitutional. If these cases from Maryland and North Carolina clarify partisan gerrymandering as unconstitutional, the District Court should once again require the General Assembly to draw a new map.
Updates will be available on the Fair Districts=Fair Election’s website.
Didn’t we just amend the Ohio Constitution a year ago?
Yes. Ballot Issue 1 that passed on May 8, 2018 provides important minimum standards for future map making by amending Ohio’s Constitution. Congressional maps must be comply with both the Ohio Constitution and the US Constitution. A. Philip Randolph v. Householder argues that the Ohio’s current congressional map doesn’t comply with the US Constitution.
Why all the fuss for one election when Ohio will redo maps in 2021 anyway?
Every election matters! The people of Ohio deserve a map that complies with the US Constitution. Voters deserve to participate in meaningful elections as soon as possible.
What could a new map look like?
The US District Court for the Southern District of Ohio recognized what redistricting reformers have been saying for a long time. Districts need to be drawn to fairly represent the voters. They should not be purposely drawn to give one political party an advantage. They should recognize counties, cities, villages, and townships and try not to split them up. The Order from the District Court that came out on May 3 should, if followed, go a long way toward making those values a reality.
Recent articles about next steps:
Cleveland.com, Proof from Pennsylvania: A New Ohio Congressional Map Can Quickly Be Drawn and Put to Use, May 7, 2019
Cincinnati Enquirer, Federal Judges Want to Throw out Ohio's Gerrymandered Congressional Map. What Does That Mean for 2020?, May 6, 2019
BREAKING NEWS-- A federal panel of three judges declared Ohio's congressional districts unconstitutional! READ THE DECISION
On May 3, a panel of judges declared the current congressional map an unconstitutional partisan gerrymander and ordered the state legislature to redraw district lines by June 14.
A. Philip Randolph Institute of Ohio v. Householder went to trial in March in Cincinnati before a panel of three federal judges: Timothy Black (Cincinnati), Karen Nelson Moore (Cleveland), and Michael Watson (Columbus). The plaintiffs including the League of Women Voters of Ohio and voters in all 16 congressional districts were represented by ACLU of Ohio, and Covington and Burling.
While Ohio voters passed congressional redistricting reform last year, new maps were not expected until after the 2020 census.
“This ruling is a victory for every Ohio voter, because a fair congressional map for 2020 means a stronger democracy for the Buckeye State," said Jen Miller, executive director of the League of Women Voters of Ohio.
Ohio Senate President Larry Obhof, on the other hand blasts ruling, "Make no mistake, this politically-motivated lawsuit was brought for the sole purpose of helping Democrat candidates win more seats."
Summary of the decision (found on page 5):
"We join the other federal courts that have held partisan gerrymandering unconstitutional and developed substantially similar standards for adjudicating such claims. We are convinced by the evidence that this partisan gerrymander was intentional and effective and that no legitimate justification accounts for its extremity. Performing our analysis district by district, we conclude that the 2012 map dilutes the votes of Democratic voters by packing and cracking them into districts that are so skewed toward one party that the electoral outcome is predetermined.
"We conclude that the map unconstitutionally burdens associational rights by making it more difficult for voters and certain organizations to advance their aims, be they pro-Democratic or pro-democracy. We conclude that by creating such a map, the State exceeded its powers under Article I of the Constitution.
Accordingly, we declare Ohio’s 2012 map an unconstitutional partisan gerrymander, enjoin its use in the 2020 election, and order the enactment of a constitutionally viable replacement."
To learn more about what happened during the mapmaking during 2011, check out the Elephant in the Room.
“The court issued a meticulously detailed opinion, concluding that Ohio’s map was an unconstitutional partisan gerrymander, and ordered the state to enact a new remedial plan by June 14,: said Freda Levenson of the ACLU of Ohio. "This opinion, declaring Ohio an egregiously gerrymandered state, completely validates every one of our claims and theories in every respect.
Ohio’s Gerrymandered Congressional Map on Trial
Testimony in wrapped up last week in APRI v. Householder, the case brought by the League of Women Voters of Ohio and the ACLU of Ohio against Ohio’s current gerrymandered congressional map. U.S. Rep. Marci Kaptur was one of several compelling witnesses who spoke of the anti-democratic effects of the gerrymandered map. The outcome is now in the hands of a three-judge panel who are due to rule within weeks.
Plaintiffs from all of Ohio’s 16 U.S. House districts and other impacted parties testified to how the awkward, even humorous, current map is fulfilling its contemptible purpose — to ensure that Republicans will consistently win 12 seats, no matter what election-year momentum exists for either party. -- J. Bennett Guess, Executive Director of the American Civil Liberties Union of Ohio, Op-ed in the Akron Beacon-Journal/Ohio.com.
If the panel of judges rules in favor of the League and the ACLU, new congressional maps would have to the drawn ahead of elections in 2020. However, the ruling would likely to be appealed to the U.S. Supreme Court. Results there might well depend on what happens in two gerrymandering cases due to begin oral arguments at the U.S. Supreme Court on March 26.
Redistricting Cases at the Supreme Court
Next week oral arguments will begin in two landmark redistricting cases that have the potential to end gerrymandering for good. Rucho v. Common Cause is about gerrymandering by the North Carolina General Assembly which is dominated by the GOP. Lamone v. Benisek is a challenge to a Democratic gerrymander in Maryland. Here’s an article about the cases from New York Times.
Join Our Rucho Road Trip! Redistricting reformers from Ohio and around the country are heading to DC to be on the steps of the Supreme Court for Rucho and Lamone. We’d love you to join us!
We have a minivan leaving Columbus early Monday, 3/25. Other drivers are very welcome to carpool with us. If you are interested in joining us or have questions, reply to this email, call Common Cause Ohio's Mia Lewis at (765) 409-4779.
We have activities planned for Monday and Tuesday, 3/25-26, including lobbying for HR1, and hearing from members of Congress about current efforts to end gerrymandering and strengthen democracy. Learn more when you sign up at this link: Road Trip!
There’s a lot going on nationally and in Ohio with democracy reforms, and redistricting specifically.
Here’s a quick update, and an invitation.
Two Important Redistricting Cases at the US Supreme Court
On Tuesday, March 26, 2019, the U.S. Supreme Court will hear oral arguments in two landmark redistricting cases that have the potential to end gerrymandering for good. Rucho v. Common Cause is about gerrymandering by the North Carolina General Assembly which is dominated by the GOP.
Lamone v. Benisek is a challenge to a Democratic gerrymander in Maryland. These two cases could potentially set a national precedent on how to draw fair maps. This could add an additional assurance that mapmaking here in Ohio after the 2020 census is fair and impartial.
Road Trip! Common Cause Ohio is organizing a road trip to Washington DC to join a major rally on the steps of the U.S. Supreme Court during oral arguments in Rucho v. Common Cause. There are also plans to lobby our Senators on the pro-democracy bill (HR1) that just passed the House. Sign up HERE. More details at the end of this post.
Redistricting Court Case in Ohio
The constitutionality of drawing district lines to manipulate the vote is being challenged back home in Ohio as well with Ohio A. Philip Randolph v. Householder. Ohio A. Philip Randolph Institute, the League of Women Voters of Ohio, and a group of Ohio residents in each of Ohio’s 16 congressional districts filed suit contending that the 2011 congressional map is an unconstitutional partisan gerrymander. ACLU Ohio argues that the 2011 map violates both our First Amendment rights and our Fourth. The trial, which looks juicy, began on March 4 and is scheduled to continue for ten days. The witness list includes political scientists and former U.S. Speaker John Boehner.
Remember how the mapmakers called the hotel room where they drew the new districts “the bunker?” Check out the story of the 2011 gerrymander here.
Listen to a Sound of Ideas program with ACLU of Ohio’s Freda Levenson, Cleveland.com’s Rich Exner, Common Cause Ohio’s Catherine Turcer, and former Ohio Republican Party chair Matt Borges about the trial.
As you listen to this program, remember: Nothing justifies the crazy congressional map that was approved by the Ohio General Assembly in 2011. We deserve to participate in meaningful elections and the districts favor one party or the other and leave us with truly uncompetitive elections. The Voting Rights Act and the creation of one majority-minority district (Congressional District 11) cannot explain why there is a district running along Lake Erie from Toledo to Cleveland. The map precisely entrenches 12 Republican districts and 4 Democratic.
Rucho Road Trip, and In-Person Lobbying for HR1!
This month Common Cause national is planning a major democracy mobilization to support two of our top national priorities: our lawsuit to END partisan gerrymandering, and our comprehensive voting rights & democracy reform package, House Resolution 1, also called the For the People Act.
On March 26th, Common Cause members and redistricting reformers from around the country will rally outside the Supreme Court as they hear oral arguments in Rucho v. Common Cause. We will be joined by redistricting luminaries such as Arnold Schwarzenegger, as well as Members of Congress.
For those traveling from outside DC, the plan is to combine the visit to the Supreme Court with direct, in-person lobbying on House Resolution 1 and other pro-democracy reforms. This is an opportunity to talk to our Senators and encourage them to support the important voting rights and democracy reforms in the For the People Act. Sign up here by Friday, March 15.
Road trip schedule:
The next few months could be a history-making moment for our democracy -- if we gather together to take action.
Although anything is possible during Lame Duck, it looks like House Joint Resolution 19 is dead for the year. Our efforts have managed to stop this ballot-busting resolution in its tracks.
HJR19 had its sixth and final hearing Wednesday (12/12). Bill Lyons presented excellent opposing testimony in the House Government Oversight and Accountability Committee, and a couple of other statements against the resolution were entered into the record. There were no questions and no discussion, and, most importantly, NO VOTE.
In all the hearings, 31 individuals and groups presented opposing testimony, and only one group argued in favor of the resolution (and he represented a group that hired paid signature collectors and hasn't done a ballot measure since 2004). Our coalition also presented the Committee with a letter signed by about 90 organizations speaking out against the resolution.
In addition there have been numerous editorials in newspapers across the state speaking out against the ballot-blocking resolution, and none that have come out solidly in favor. Here’s a sampling:
Ohio may make it harder for public to put issues on statewide ballot (Dayton Daily News)
Ohio League of Women Voters among dozens of groups opposing GOP ballot issue changes (Columbus Dispatch)
Note to lawmakers - Ohioans have a constitutional right to propose ballot issues: Thomas Suddes (Cleveland.com)
Amending The Amendment Process: Ohio May Raise Bar For Ballot Issues (WOSU)
Groups coalesce to fight Ohio legislature’s constitutional amendment plan (Cleveland.com)
Although this bad idea is likely to come back again in some form next year, we are thrilled that our joint advocacy and outspokenness against this undemocratic resolution have killed it for now.
Many thanks to the advocates who showed up to present or submitted written testimony to the committee: Kathy Deitsch, Bill Lyons, Sandy Bolzenius, Bill Davis, Mary Nordstrom, Carolyn Harding, Charlotte Owen, Jackie Bird, Melanie Majikas, Michael Ahern, Greg Pace, Deborah Cooper, Emily Lampe, Catherine LaCroix, Heather Tuck-Macalla, Carrie Eickleberry, Valerie Mason, Andrea Yagoda, Barb Fleeter, Sue Dyke, Susan Haas, Maureen Welch, and Denis Osowski. Your efforts made a difference!
Thanks to all for everything you do, and all the best of the season from Fair Districts = Fair Elections.