By Catherine Turcer, Common Cause Ohio
The Fair Districts = Fair Elections Coalition continues to look for input on our congressional redistricting reform plan.
On October 28, we released a draft proposal for public comment and received a variety of helpful feedback. Carrie Davis of the League of Women Voters of Ohio presented a revised version of the proposal to an Ohio Constitutional Modernization Commission committee hearing on December 15.
This hearing has prompted us to seek public comment on an additional aspect of our reform proposal: What if there is a tie?
The October 28 draft proposal does not include a tie-breaker in case the Democrats and Republicans on the Ohio Redistricting Commission can’t agree on new congressional district lines.
Is it enough to simply leave the Ohio Redistricting Commission duty bound or constitutionally mandated to come up with the new map? Some people say yes, others no.
Mapmaking isn’t easy. Clearly, district lines can impact the outcome of elections. It’s easy to imagine in our very polarized society that it will truly be a challenge for the bipartisan Ohio Redistricting Commission to work together to create fair maps.
With that challenge in mind, the Fair Districts = Fair Elections coalition has compiled several options – including nonpartisan, bipartisan, and partisan tie breakers – and we invite public comment on which options do or do not serve voters’ interest in fair districts.
Rules that maximize compactness and transparency and prohibit gerrymandering will help guide the Ohio Redistricting Commission but what impasse will work best if the two political parties can’t agree?
OPTION #1 – Map with best objective numerical score
If the commission is unable to adopt a plan [map] in accord with the provisions of Section 1 (B)(3) of this article, the plan submitted to the commission that includes the smallest number of splits of counties, municipal corporations and townships (in that order), and that has the highest representational fairness score (as defined in Section 3 (C)(3), and which is most compact, must be adopted as the congressional district plan. The plan shall take effect upon filing with the secretary of state and shall remain effective until the next year ending in the numeral one, except as provided in Section 11 of this article.
Pros: By strictly applying criteria that keeps communities together and fair representation, voters would be guaranteed a fair outcome. By relying exclusively on a formula, the members of the Ohio Redistricting Commission would have no real role in mapmaking or harmonizing the criteria or communities’ and parties’ interests. This should provide an incentive for the members of the Commission to work together towards a bipartisan map.
Cons: Ohio is not a square and a strict mathematical formula may not work perfectly and will likely require some tweaking. OPTION #1 may be a “Catch 22” and not an actual tie-breaker.
OPTION #2 – Voters choose [adapted from 129th General Assembly Senate Joint Resolution 4 (sponsored by Senators Frank LaRose and Tom Sawyer)]
For each type of plan [map] that has not been adopted, members of the commission who are affiliated with the two largest political parties in the state shall each have one week to develop their last, best offer of a redistricting plan, which plans shall be submitted to the secretary of state to be placed on the ballot at the general election conducted in that year.
During that same one week period, members of the commission who are affiliated with the two largest political parties in the state each shall select one of their members, and those two selected members shall select a third person, who is not a member of the commission. The two selected commission members, and the third person they select, shall, by majority vote, choose from among the publicly submitted plans the single plan that is the most competitive, that splits the fewest number of political subdivisions, and that, to the best of their belief, meets all the other requirements of this article, including, but not limited to, federal statutory provisions dealing specifically with the protection of minority voting rights. That plan shall be submitted to the secretary of state to be placed on the ballot at the general election conducted in that year.
Of the three plans submitted to the secretary of state for placement on that ballot at the general election under this division, the plan receiving the highest number of favorable votes at that election shall be adopted.
PRO: This tie-breaker was put forward by a bipartisan group of state legislators called the “Gang of Four” a few years ago. It would put the ultimate decision in the hands of voters. If the Ohio Redistricting Commission is unable to agree on a map, voters would be able to choose from three maps – one put forward by each major party and the highest-rated public submission. This option leaves congressional candidates waiting for new districts which should put pressure on the members of the Ohio Redistricting Commission to come to a bipartisan agreement. The cost of a campaign over preferred maps should also be an incentive.
CONS: This tie-breaker presents a timing problem. If this tie-breaker is necessary, voters would be choosing a district map during the same election in which they vote for congressional representatives. That means there would be one election--
for example in 2022— in which candidates for Congress would have to run at large since there will be no districts. This type of limbo could have unintended consequences, and it might raise legal concerns related to the fundamental principle of “one person, one vote.” Because of this legal principle no individual’s vote may be weighed more heavily than another’s and congressional districts must be nearly equal in population.
OPTION #3 – No impasse procedure; The Ohio Redistricting Commission is simply required to adopt a map by deadline.
PROS: Ohio Secretary of State Jon Husted’s 2009 redistricting reform proposal did not include a tie-breaker. Time as both deadline and tie-breaker has been tested by the legislature repeatedly. This option is akin to the provision in the Ohio Constitution that requires the Ohio General Assembly to pass a state budget every two years by a set deadline, which they always do.
CONS: Sometimes people with different views simply cannot agree. For example, juries occasionally cannot reach agreement, and jurors do not enter into deliberations with as much baggage and distrust as Commission members of two different political parties with a long history will. It is unclear what would happen if Commission members reach a stalemate and cannot agree on a map by the deadline if there isn’t some type of tie-breaker.
OPTION #4 – Apply the same impasse procedure to be used for the Ohio House and Ohio Senate map drawing - namely, that if both political parties do not reach agreement, the majority party can pass a map good for four years and then the Ohio Redistricting Commission must reconvene to try again to pass a map for the remaining six years of that decade.
“…if the commission adopts a final general assembly district plan in accordance with division (A)(3) of this section by a simple majority vote of the commission, and not by the vote required to adopt a plan under division (B)(3) of Section 1 of this article, the plan shall take effect upon filing with the secretary of state and shall remain effective until two general elections for the house of representatives have occurred under the plan…
A final general assembly district plan adopted under division (C)(1)(a) or (b) of this section shall include a statement explaining what the commission determined to be the statewide preferences of the voters of Ohio and the manner in which the statewide proportion of districts in the plan whose voters, based on statewide state and federal partisan general election results during the last ten years, favor each political party corresponds closely to those preferences, as described in division (B) of Section 6 of this article. At the time the plan is adopted, a member of the commission who does not vote in favor of the plan may submit a declaration of the member's opinion concerning the statement included with the plan.
(D) After a general assembly district plan adopted under division (C)(1)(a) of this section ceases to be effective, and not earlier than the first day of July of the year following the year in which the plan ceased to be effective, the commission shall be reconstituted as provided in Section 1 of this article, convene, and adopt a new general assembly district plan in accordance with this article, to be used until the next time for redistricting under this article. The commission shall draw the new general assembly district plan using the same population and county, municipal corporation, and township boundary data as were used to draw the previous plan adopted under division (C) of this section.”
PROS: This option is already enshrined in the state constitution, having been approved by voters in 2015 as part of state Issue 1. The Ohio Redistricting Commission would face the same impasse rules if they cannot reach agreement on a Congressional map or a General Assembly map, rather than having two different sets of rules for impasse.
CONS: It is perhaps the most confusing and cumbersome option. It includes the troubling option of a partisan map if both sides cannot reach agreement. It could also mean that district lines could change mid-decade, causing confusion for voters and potential candidates about what district they will be in from year to year.
We need to hear from you! Which tie-breaker makes sense? Which ones seem troubling and why? The Fair Districts = Fair Elections Coalition also welcomes suggestions for an alternative impasse process. Please comment below or send an email to firstname.lastname@example.org about the congressional redistricting reform proposal.
PDF of full proposal