Chris Tavenor, General Counsel, June 19, 2018
In early May, Ohioans overwhelmingly voted in favor of Issue 1, amending the Ohio Constitution to include a groundbreaking bipartisan congressional redistricting process.
At the Ohio Environmental Council, we strongly believe that a healthy democracy is necessary for a healthy environment, which is why we championed Issue 1 with our coalition partners. We will continue pushing for policy that protects foundational voting rights and empowers our government to give us clean air, water, and energy.
This week, the United States Supreme Court issued an opinion in a case vital to the future of our democratic institution. In Gill v. Whitford, Chief Justice John Roberts punted the substantive legal analysis of partisan gerrymandering to an indeterminate time in the future, but he did leave a small window open for an argument that could end such gerrymandering once and for all.
According to the dozen plaintiffs opposing the state’s legislative map, Republicans unconstitutionally gerrymandered districts to dilute the power of Democratic voters. The plaintiffs argued that such political mapmaking violated their constitutional right to equal protection.
Chief Justice Roberts states that the plaintiffs’ arguments relied on generalized harms to the Democratic Party and therefore they lacked standing. The Court kicked the case back to Wisconsin for further consideration.
After all the build-up surrounding gerrymandering the past few months, the Court just avoided a final decision based on procedural reasoning. It didn’t create a rule that limits “cracking” or “packing,” the principle tools to segregate political parties into particular districts. Nor did it create a way to eliminate “efficiency gaps,” where a particular person’s vote is worth more if they subscribe to one political party as opposed to another.
The Chief Justice does discuss those problems, but his ultimate decision that the plaintiffs lack standing obscures that conversation. Fortunately, the Chief Justice sprinkled language throughout his opinion that makes clear that the Court will still consider partisan gerrymandering at a later date.
For instance, in discussing the plaintiffs’ failure to prove standing, Roberts emphasizes that alleged harm must be “district specific.” Because the plaintiffs tried to invalidate the entire map, rather than just the boundaries of the particular districts where they vote, the Court cannot help them.
This decision is much narrower than a “side-step,” as many major news headlines describe the case. Normally, if plaintiffs lack standing, the Court simply dismisses the case, immediately ending the story.
By deciding to send the case back to the District Court, the Chief Justice instead signals that if the plaintiffs provide the correct argument, they can prove standing and simultaneously prove that the state legislature’s map was unconstitutionally gerrymandered, at least for specific districts. Thus, a small window remains open for the Court to consider this case again in the future.
In her concurrence to the Chief Justice’s opinion, Justice Elena Kagan emphasized that “partisan gerrymandering…is incompatible with democratic principles,” and “only the courts can do anything to remedy the problem, because gerrymanders benefit those who control the political branches.”
While this is a profound quote, Justice Kagan must have missed Ohio’s primary election this past May. For Ohio, it was not a court, but lawmakers and advocates coming together in a spirit of cooperation and ultimately letting the voters of the state decide.
The new bipartisan redistricting process created by Issue 1 should remove any doubt that our state’s map is equitably drawn. Ohioans should be proud that we no longer need to worry about gerrymandering in the future. However, the coast isn’t entirely clear. Ohioans still must deal with other cracks in their democratic foundation.
Last week in Husted v. A. Philip Randolph Institute, the Supreme Court ruled that Ohio’s procedure to remove voters from the federal voter registry was legal, even when based primarily on a voter’s failure to vote, rather than their change in residence. This could result in the purging of hundreds of thousands of voters from the Secretary of State’s records. And if Gill v. Whitford returns to the Supreme Court, the final rule created by the Justices could influence how Ohio courts interpret the Ohio Constitution’s new Issue 1 language.
Ohioans should take heart that they set the stage for other states to overcome gerrymandering through the will of the people themselves. Hopefully, our state won’t be the last place to pass redistricting reform. People across the country should take the power of gerrymandering out of the hands of politicians, just like in Ohio.