Proposed Amendment for ’Non-Partisan’ Congressional Redistricting Process in Ohio Voters’ Hands

After numerous half-hearted attempts in prior legislative sessions, and with a greater likelihood of a statewide citizen-initiated ballot issue looming, the Ohio General Assembly has passed bipartisan Congressional Redistricting reform supported by several nonpartisan organizations and the two major political parties, which is headed for the statewide ballot on May 8, 2018. Senate Joint Resolution 5, if approved by a majority of Ohio voters, would amend the Ohio Constitution to meet four objectives:

  1. End the partisan process for drawing congressional districts and replace it with a process with the goals of promoting bipartisanship, keeping local communities together and having district boundaries that are more compact.
  2. Ensure a transparent process by requiring public hearings and allowing public submission of proposed plans.
  3. Require the General Assembly or the Ohio Redistricting Commission to adopt new congressional districts by a bipartisan vote for the plan to be effective for the full 10-year period.
  4. Require that if a plan is adopted by the General Assembly without significant bipartisan support, it cannot be effective for the entire 10-year period and must comply with explicit anti­-gerrymandering requirements.

These objectives – articulated exactly as they will appear on the May ballot – would be accomplished by regulating discretion, articulating district guidelines and priorities, requiring bipartisanship and transparency, and limiting the power of the state courts. The current process, which essentially consists of a district plan subject only to general U.S. Constitutional principles passed in the form of a bill, would be replaced with a transparent process, district standards and a forum for legal challenges.

Adopting a District Plan

Here’s the short version. The General Assembly will first try to pass a bipartisan plan by September 30, 2021. If it can’t do it, the Redistricting Commission will have a try to pass a bipartisan plan by October 31, 2021. If the Commission fails, the General Assembly gets another try by November 30, 2021. At that point, we will know if we have a 10-year district plan, or, if the plan that has passed doesn’t reach specific bipartisan voting thresholds, a 4-year district plan.

Here’s the long version with more detail. The General Assembly will first appoint a joint committee from both chambers to hold public hearings on proposed plans. Thereafter, the General Assembly must pass the plan with at least a 3/5 affirmative vote in each chamber, with at least 1/2 of each party caucus’s support. If the Governor signs the bill, the plan will take effect 90 days thereafter like other bills, and the political world of Ohio redistricting will be filled with peace, love and harmony…but there are other potential outcomes that would thwart those warm and fuzzy feelings and trigger the acrimony that traditionally accompanies redistricting.

For example, the Governor could veto the plan, or the plan could be subject to a citizen referendum. SJR5 provides that the General Assembly can override a veto, and a plan with an emergency clause passed by a 2/3 affirmative vote in each chamber would not be subject to referendum. But, if the General Assembly does not pass a plan or, if necessary, override a vetoed plan by September 30 of a year ending in the numeral “one,” the Ohio Redistricting Commission will inherit the task of adopting a plan under specified requirements by October 31 of that year.

Recall that the seven-member Ohio Redistricting Commission was created by the November 2015 election to adopt a Constitutional amendment to reform the process for adopting a State reapportionment plan and will officially exist in January 2021. SJR5 requires the Commission to hold at least two public hearings on a proposed congressional district plan, and thereafter empower the Commission to adopt a plan by the affirmative vote of four members, at least two of which representing each of the two largest political parties represented in the General Assembly. If the Commission meets these requirements, the plan will remain in effect for ten years and feelings of peace, love and harmony find a space in Ohio politics.

But, if the Commission cannot adopt a plan in accordance with these requirements, SJR5 requires that the task return to the General Assembly, which must pass a plan in the form of a bill by November 30 of that year. If the General Assembly passes the plan by the affirmative vote of 3/5 of the members of each house, including the affirmative vote of at least 1/3 of the members of each of the two largest political parties represented in that house, and the plan becomes law, the plan remains effective until the next year ending in the numeral one, and again, the political peace and harmony reign supreme in Ohio…unless the state is required to redraw judicially invalidated districts.

However, in the event political acrimony remain the norm and the General Assembly is only able to pass a plan by a simple majority, or without the bipartisan threshold mentioned above, the plan only becomes law for two general elections for the U.S. House of Representatives. Additionally, General Assembly must not pass a plan that unduly favors or disfavors a political party or its incumbents. The plan also must not unduly split governmental units (giving preference to keeping whole counties, then townships and then municipal corporations), and districts drawn must be compact. The General Assembly must include in the plan an explanation of its compliance with these requirements. After the second succeeding general election, the General Assembly and, if necessary, the Commission must follow the same steps in the same order to pass a new plan that would remain in effect until the next year ending with the numeral one.

Standards for Districts

The General Assembly or Commission, as the case may be, must take the entire population of the state (per the most recent federal census), and divide it by the number of congressional districts apportioned to Ohio by Congress to determine the ratio of representation. Unlike state redistricting, congressional redistricting does not permit variances in district population unless unavoidable.

SJR5 generally requires that the plan comply with all applicable provisions of the Ohio Constitution, the U.S. Constitution, and federal law. Ohio has no written standards for congressional redistricting currently, and the General Assembly is guided only by the U.S. Constitution’s “one person, one vote” principle in the Fourteenth Amendment and the Voting Rights Act of 1965, as amended.

While those principles are incorporated into SJR5, SJR5 further specifies that every district be compact and composed of contiguous territory, and requires that the boundary of each district must be a single nonintersecting continuous line. The General Assembly or Commission must attempt to include at least one whole county in each district, but the proposed amendment also provides several district drawing rules that limit the extent to which counties, municipal corporations, and townships may be split between districts, and even defines what a “split” means. This is particularly important in instances where municipalities or townships span across multiple counties, or where a jurisdiction is not entirely contiguous.

Lawsuits Challenging a District Plan

The Ohio Supreme Court would have exclusive, original jurisdiction in all cases arising under the proposed section of the Ohio Constitution. The Court’s role is limited to determining whether a district or group of districts is invalid – not to re-draw any district. If that determination is made, the process outlined above for the General Assembly and Commission is triggered once again. That said, challenges arising under the U.S. Constitution or U.S. Code may still be filed in federal court, which has historically created havoc – often for good reason – when a violation has been found.

Conclusion

The history of the redistricting process in and out of Ohio has demonstrated that there is no perfect system for drawing a district plan, while the U.S. Supreme Court has come close but not explicitly yet ruled that hyper-partisan districts are unconstitutional. However, we do know that prolonged litigation about hyper-partisan districts, the Voting Rights Act or other violations are expensive for states and confusing for candidates and voters relying on finality and fairness. If passed, the explicit standards within this proposed amendment, including transparency mandates, and built-in bipartisanship standards will likely limit the challenges and the likelihood of successful challenges to an adopted plan – or, at the very least, provide clearer standards to review whether the plan is Constitutional.