Gerrymandering Control of Redistricting: How Standards Should be Introduced to Limit Unfair District Map Manipulation (2024)

by Sarah Stoner, Notes and Comments Editor, University of Cincinnati Law Review Vol. 91

I. Introduction

Gerrymandering in the United States has recently gained greater attention as it reaches extreme levels of voter manipulation. While gerrymandering is not new, technology allowing detailed voter analysis and map drawing allows greater ease to manipulate district maps in favor of a political party.¹Michael S. Kang, Hyperpartisan Gerrymandering, 61 B.C. L. Rev. 1379, 1441 (2020). This combined with the present hyper-partisanship creates the perfect arena for a state legislature’s reigning party to abuse its power and unfairly gerrymander new district maps to ensure it wins elections.

Voting rights groups have challenged gerrymandered maps as violating the right to vote under the U.S. Constitution.²See, e.g., Vieth v. Jubelirer, 541 U.S. 267 (2004); Davis v. Bandemer, 478 U.S. 109 (1986); Fortson v. Dorsey, 379 U.S. 433 (1965); see also, e.g., Whitford v. Gill, 218 F. Supp. 3d 837 (W.D. Wis. 2016). However, the Supreme Court of the United States recently held such claims fall outside the power of the federal courts.³See Rucho v. Common Cause, 139 S. Ct. 2484 (2019). Some states have implemented new laws to prevent unfair gerrymandering. Ohio, for example, amended its constitution to incorporate anti-gerrymandering standards by way of a direct vote from Ohio voters. As this article will review, the anti-gerrymandering provisions exemplified by Ohio serve as a step towards controlling extreme gerrymandering. However, in the interest of protecting the individuals’ right to vote, states should consider provisions beyond those Ohio has implemented to truly address and prevent extreme gerrymandering.

II. Background

A. Brief History of Gerrymandering⁴For a more comprehensive history of Gerrymandering in the U.S. see Kang, supra note 1.

In the United States, redrawing of legislative district boundaries, or redistricting, occurs periodically to adjust to shifts in population to properly apportion representatives.⁵See Stephen K. Medvic, Gerrymandering: The Politics of Redistricting in the United States 3 (2021). The Apportionment Act of 1842 required all states to establish congressional districts by which to elect one House representative per district.⁶Kang, supra note 1, at 1389. The federal government has left decisions regarding elections and redistricting processes primarily to the individual states.⁷Medvic, supra note 5, at 3; see also Elections Clause, U.S. Const. art. I, § 4, cl. 1 (“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”). Some federal limits exist, such as the “one person, one vote” doctrine, requiring population proportionality across districts and invalidating district maps drawn primarily based on race.⁸See Reynolds v. Sims, 377 U. S. 533, 566 (1964); Shaw v. Reno, 509 U.S. 630 (1993).

Gerrymandering is the practice of drawing electoral districts in a way that manipulates the voting power of eligible voters within the state.⁹Brian Duignan, Gerrymandering, Encyclopedia Britannica, https://www.britannica.com/topic/gerrymandering. (last visited July 29, 2022). Political, or partisan, gerrymandering occurs when map drawers design districts to “crack” or “pack” voters of a particular political party in order to create a district map which favors one political party and disfavors the others.¹⁰Devon Ombres, The Recent History of Gerrymandering in Florida: Revitalizing Davis v. Bandemer and Florida’s Constitutional Requirements on Redistricting, 20 Wash. & Lee J. Civil Rts. & Soc. Just. 297, 317 (2014); see also Rucho v. Common Cause, 139 S. Ct. 2484, 2492 (2019) (“A ‘cracked’ district is one in which a party’s supporters are divided among multiple districts, so that they fall short of a majority in each; a ‘packed’ district is one in which a party’s supporters are highly concentrated, so they win that district by a large margin, ‘wasting’ many votes that would improve their chances in others.”). The political nature of redistricting, the desire of a political party or representative to maintain control, and the common practice of politicians to lead or influence the redistricting process all lead to gerrymandering.¹¹Medvic, supra note 5, at 4. Gerrymandering intentionally alters the region’s party preferences by drawing districts to optimize the support of one party.¹²Id. at 29. Gerrymandering correlates to and occurs more prominently at times of heightened partisanship.¹³Kang, supra note 1. The hyper-partisanship of present time correlates to extreme gerrymandering, skewing partisan representation with a much greater impact on individual voting power and election results.¹⁴Id. at 1439-40.

Technology has also helped increase gerrymandering’s impact. With the aid of advanced technology, map drawers can now choose their voters in each district to algorithmically maximize their party support.¹⁵Id. at 1441. Technology also provides new ways to measure the impact of district maps and evaluate gerrymandering.¹⁶Id. at 1442. Advanced technology and higher levels of gerrymandering—now more than any other time in U.S. history—has had a direct and wide-reaching impact on elections across the nation.¹⁷Id.

Gerrymandering has reached such an extreme level that it calls into question the potential stripping of individual’s right to vote and the duty of legislatures to draw fair maps. So far, federal courts have refused to set clear restrictions on the politically motivated partisan gerrymandering.

B. Gerrymandering at Federal Level

The U.S. Constitution grants a right to vote to eligible U.S. citizens,¹⁸See Rucho v. Common Cause, 139 S. Ct. 2484, 2495 (2019). guarantees a republican form of government,¹⁹U.S. Const. art. IV, § 4. and gives the power to set the manner of elections to the individual states.²⁰Id. While the Supreme Court has offered clear precedent for addressing racially motivated gerrymandering and proportionality of districts, for instances of partisan gerrymandering, the Court has historically fractured, only managing to offer plurality opinions across several cases.²¹Id. at 39-43. Only recently has the Supreme Court issued an official majority opinion on the justiciability of partisan gerrymandering issues.²²Rucho v. Common Cause, 139 S. Ct. 2484 (2019).

In 2019, the Supreme Court set a new partisan gerrymandering standard with Rucho v. Common Cause. Voters complained of their respective state district plans violating their constitutional rights under the First Amendment, the Elections Clause, and the Fourteenth Amendment’s Equal Protection Clause.²³Rucho, 139 S. Ct. at 2491. Rucho consisted of two separate cases raising these constitutional concerns: one in which the Republican Party gerrymandered the districts and another in which the Democratic Party gerrymandered the districts.²⁴Id. at 2491-93. The Supreme Court’s majority opinion found the issues nonjusticiable because (1) proportionality rights protect voting power of individuals, not groups, (2) the text of the Constitution suggests intent to leave the issue to the legislature, and (3) because the Court lacked a “clear, manageable and politically neutral” standard to apply.²⁵Id. at 2488, 2496, 2501. Additionally, the Fourteenth Amendment’s Equal Protection Clause does not require “proportional representation” for groups and “federal courts are not equipped to apportion political power as a matter of fairness.”²⁶Rucho, 139 S. Ct. at 2499.The Supreme Court held “partisan-gerrymandering claims present political questions beyond the reach of federal courts.”²⁷Adams v. DeWine, No. 2022-Ohio-89, slip op. ¶ 6 (Jan. 14, 2022) (citing Rucho, 139 S. Ct. at 2506-2507). Rucho directly overturned and vacated several federal district court decisions that held “partisan gerrymander[ing] violated Equal Protection Clause of the Fourteenth Amendment and the First Amendment.”²⁸See Benisek v. Lamone, 348 F. Supp. 3d 493, 523 (D. Md. 2018); Common Cause v. Rucho, 318 F. Supp. 3d 777, 941 (M.D.N.C. 2018); See, e.g., Whitford v. Gill, 218 F. Supp. 3d 837 (W.D. Wis. 2016); Nelson, supra note 30, at 1092 n.12.

The Ohio Supreme Court noted two factors underlying the Rucho holding: “(1) the federal Constitution does not include a ‘plausible grant of authority’ to federal courts to review partisan-gerrymandering claims, and (2) there are no ‘legal standards to limit and direct’ the decision-making of federal judges in such claims.”²⁹Adams v. DeWine, No. 2022-Ohio-89, slip op. ¶ 32 (Jan. 14, 2022) (citing Rucho, 139 S. Ct. at 2507). Unlike the federal courts, the people of Ohio voted to amend the Ohio Constitution to grant such authority and establish such standards.³⁰Ohio Const. art. XIX.

C. Supreme Court of Ohio’s Decisions

In January of 2022, the Supreme Court of Ohio issued two opinions regarding gerrymandering in Ohio, concluding that the Ohio Redistricting Committee failed to abide by the Constitution of the State of Ohio (“Ohio’s Constitution”).³¹League of Women Voters of Ohio v. Ohio Redistricting Comm., No. 2022-Ohio-65, slip op. ¶ 76 (Jan. 12, 2022); Adams, slip op. at ¶ 6. This subsection will provide a summary of the factual background and holding of both Ohio Supreme Court opinions.

1. Creating District Plans under the Ohio Constitution

Ohio’s Constitution requires the General Assembly to pass a ten-year district plan during every “year ending in the numeral one,” including “the affirmative vote of at least one-half of the members of each of the two largest political parties represented in that house.”³²Ohio Const. art. XIX, § 1(A).

In November 2015, a direct vote by Ohio voters approved an amendment to Article XI of the Ohio Constitution to alter the redistricting process.³³League of Women Voters, slip op. ¶ 4. The new version of Article XI required a “redistricting commission” to consist of the governor and two other executive branch officials, two state Senate members, and two members from the House of Representatives.³⁴Ohio Const. art. XI, § 1(A). The commission specifically includes the governor, the state auditor, the secretary of state, and two appointed members from the senate–selected by the majority and minority party leaders, respectively–and two appointed members from the house of representatives–selected by the majority and minority party leaders, respectively. Id. at § 5. Ohio consists of ninety-nine House districts and thirty-three Senate districts; each district elects one representative.³⁵Ohio Const. art. XI, § 1(C). Adoption of a redistricting plan requires a simple majority vote within the Commission, “including at least two members of the commission who represent each of the two largest political parties represented in the general assembly.”³⁶Id. at § 1(B)(3) (emphasis added).

The Ohio Constitution provides several guidelines for drawing district maps. The Commission must adopt a General Assembly district plan by September 1 of the years requiring passing a new plan.³⁷Id. at § 1(C). Each district shall follow the ratios of representation found by dividing the state’s population (from the census) by the number of districts.³⁸Id. at § 3(A). Ratios of the drawn districts must stay within five percent of the calculated population per district.³⁹Id. at § 3(B). Additionally, “where feasible, no county shall be split more than once,” and when necessary, “not more than one municipal corporation or township may be split per representative district.”⁴⁰Id. at § 3(C), (D). Further, the General Assembly district plan must “comply with all applicable provisions of the constitutions of Ohio and the United States and of federal law,” and the districts must consist of a “contiguous territory” with a “single, nonintersecting, continuous line” as the boundary.⁴¹Id. The district plan must not primarily favor a political party, districts favoring parties must closely correspond to statewide voter preferences, and districts must be compact.⁴²Id. at § 6. Further, “district boundaries shall be created by using the boundaries of counties, municipal corporations, and townships as they exist at the time of the federal decennial census on which the redistricting is based, or, if unavailable, on such other basis as the general assembly has directed.”⁴³Id. at § 7. Article XI also provides a plan for when the Redistricting Commission fails to successfully adopt a new district plan by September 1 or if the plan passes by majority but fails to have the requisite bipartisan support (in which case the plan will stand for four years instead of ten).⁴⁴Id. at § 8. The remedies include amending the district plan to correct isolated violations or declaring the plan invalid and ordering the Commission to create a new district plan.⁴⁵Id. at § 9(D)(3). As written, Ohio’s Constitution provides no specific backup plan besides requiring the Commission to fix the map and try again.⁴⁶Id. at § 9(D)(3).

Article XIX, adopted in 2018,⁴⁷See Ohio Secretary of State, 2018 Official Election Results, https://www.ohiosos.gov/elections/election-results-and-data/2018-official-elections-results/ [https://perma.cc/RG5P-39FT] (last visited July 31, 2022). sets many of the same standards of Article XI, but for the congressional district map rather than the General Assembly district map. Like the General Assembly district map, the Congressional district map must keep districts compact and not unduly favor a party nor unduly split governmental units.⁴⁸Ohio Const. art. XIX, § 1(3). Both Article XIX and Article XI grant the Ohio Supreme Court original and exclusive jurisdiction over issues regarding the district maps.⁴⁹Ohio Const. art. XI, § 9; art. XIX, § 3.

Ohio voters adopted new constitutional provisions for district map drawing which should help prevent extreme and unfair gerrymandering. The provisions set forth a new process by way of a commission and new requirements for the districts: no undue favoring of a political party, close correspondence to voter preference, district compactness, and bipartisan support. In its first redistricting under the new constitutional provisions, the Ohio General Assembly failed to properly follow the updated guidelines.

2. Background of the Invalidated Redistricting

The most recent Redistricting Commission convened on August 6, 2021.⁵⁰League of Women Voters, slip op. ¶ 10. The 2021 commission consisted of Governor Mike DeWine (Republican), Secretary of State Frank LaRose (Republican), Auditor of State Keith Faber (Republican), Speaker of the House Robert Cupp (Republican), and President of the Senate Matthew Huffman (Republican), House Minority Leader Emilia Sykes (Democrat), and Senator Vernon Sykes (Democrat). Id. The democratic party and republican party both proposed district maps to the Commission, yet the Commission failed to provide a proposed map by the deadline of September 1.⁵¹Id. ¶ 12.

Despite expressed concerns from multiple members, a map was accepted as the Commission’s proposal by a vote split along party lines, 5-2.⁵²Id. ¶¶ 16, 21-23. The last decade of statewide partisan elections reflected: “Republican candidates had won 54 percent of the vote share and Democratic candidates had won 46 percent of the vote share.” The proposal by House Speaker Cupp and Senate President Huffman initially started with thirty-two seats leaning Democrat and sixty-seven seats leaning Republican. The final accepted plan for the Commission’s proposal (“commission’s district plan”) included thirty-seven House seats leaning Democrat and sixty-two seats leaning Republican. Id. ¶ 47.

On November 16, the Commission’s district plan was introduced to the Senate as 2021 Sub.S.B. No. 258. Both the Senate and the House voted along party lines to approve the district plan.⁵³Adams, slip op. at ¶ 21. Governor DeWine signed the Commission’s district plan into law on November 20 and within ten days of its enactment, two lawsuits filed in the Supreme Court of Ohio alleged the plan violated Ohio’s Constitution.⁵⁴Id. ¶¶ 21, 23.

3. League of Women Voters of Ohio v. Ohio Redistricting Commission

In League of Women Voters, the Supreme Court of Ohio invalidated the Commission’s district plan after considering the failure of the Commission to abide by the newly amended Ohio Constitution. The complaint in League of Women raised issue against the Ohio Redistricting Commission for not complying with the provisions of Article XI, Section 6 of Ohio’s Constitution requiring partisan fairness and proportionality.⁵⁵League of Women Voters, slip op. ¶ 1. Defendants, Cupp and Huffman, argued the requirements under Section 6 were merely “aspirational” and required no actual attempt to follow.⁵⁶Id. ¶ 82. The court reasoned the language of the amendments, as voted on and understood by the Ohio voters, left no question that the requirements are fully mandatory and enforceable.⁵⁷Id. ¶¶ 82-84. Further, the court rejected the argument that Section 6 claims were inactionable, reasoning the court has power to review unconstitutional gerrymandering and not simply leave it to be resolved by voting out the perpetrators.⁵⁸Id. ¶ 101.

The court then analyzed how the commission failed to abide by Section 6. Section 6 “prohibits a plan from being drawn primarily to favor or disfavor a political party.”⁵⁹Id. ¶ 116. The court found the Commission completely disregarded Ohio’s Constitution as party caucuses drew maps and the commission simply approved one, rather than following Article XI’s requirement the Commission draft the proposed plan as prescribed or hire independent staff to do so.⁶⁰Id. ¶ 119. Cupp and Huffman designated Ray DiRossi and Blake Springhetti, the finance directors of the Senate and House, respectively, as the map drawers. Id. ¶¶ 14, 34. Cupp and Huffman then also restricted other Commission members from discussing with DiRossi and Springhetti about the maps. Id. ¶ 39. The Commission voted along party lines for their own respective maps and approved a map that lacked any explanation by nondiscriminatory justifications.⁶¹Id. ¶¶ 24, 121. The court relied on expert analysis to find the maps so overwhelmingly favored the Republican party that it had to be drawn primarily to favor said party, in direct violation of Section 6.⁶²Id. ¶ 128. The Supreme Court found the Commission failed to abide by the new constitutional provisions for redistricting; therefore, the court invalidated the Commission’s district plan.⁶³Id. ¶ 138.

4. Adams v. DeWine

In the second case, the Ohio Supreme Court again invalidated the Congressional district map enacted by the Redistricting Commission and the General Assembly. In deciding Adams v. DeWine, the Ohio Supreme Court found the Commission’s proposed districts failed to meet the new anti-gerrymandering requirements regarding congressional redistricting. The map specifically violated Article XIX, Section 1(C)(3) requiring that: (1) a plan shall not unduly favor or disfavor a political party, (2) a plan shall not unduly split counties, townships, and municipal corporations, and (3) a plan shall attempt to draw compact districts.⁶⁴Adams, slip op. ¶¶ 100-02.

Under the proposed plan, Republicans were predicted to win 80% of the congressional seats despite only receiving about 53% of votes in recent elections.⁶⁵Id. ¶¶ 46-47 (Dr. Warshaw noted Republicans were favored to win in the three competitive districts). Two experts simulated several alternative district plans⁶⁶Id. ¶ 48 (generating 5,000 Article XIX–compliant simulated plans). that better fit the Article XIX criteria, and both concluded the enacted map was an “outlier,” further suggesting it unduly favored the Republican party.⁶⁷Id. ¶¶ 48-51 (Dr. Chen found that only 1.3% of simulated maps produced 12 seats to Republicans, the number in the newly accepted district map). Experts showed that there were only two or three truly competitive districts under the enacted plan. The court determined the expert analysis supports “beyond any reasonable doubt the conclusion that the enacted plan excessively and unwarrantedly favors the Republican Party and disfavors the Democratic Party.”⁶⁸Id. ¶ 51.

The court then considered the expert analysis showing how the enacted map unduly and unnecessarily cracks districts to set them in favor of the Republican Party. Specifically, the map cracked Hamilton, Franklin, and Cuyahoga counties which contain the three biggest cities in Ohio: Cincinnati, Columbus, and Cleveland, respectively.⁶⁹Id. ¶ 53. Simulated plans showed Cincinnati should remain a compact district and lean Democratic; however, “the enacted plan carves up the Black community in Cincinnati, splitting it into three districts and submerging it among predominantly white, exurban, and rural voters.”⁷⁰Id. ¶ 56.

The commission’s district plan unduly split Hamilton County with a north-south line on the east side to thinly connect it to Warren County (to the northeast) and broke off the northern suburbs to combine them with Butler County (directly north).⁷¹Id. ¶¶ 56, 84-88. Experts found similarly for other counties. Simulated plans suggested Franklin County should have party support more evenly distributed rather than packing the Democratic leaning area together and splitting up the surrounding areas.⁷²Id. ¶¶ 58-60. Likewise, packing in Cleveland leaves Cuyahoga County split “into three districts and contain[ing] a district that would be noncontiguous except for a narrow corridor that is one precinct wide.”⁷³Id. ¶ 61. The Commission’s district plan “splits Summit County by cutting Akron off from its eastern Democratic-leaning suburbs, placing those suburbs in a ‘long, narrow north-south corridor that is, in one spot, less than one mile wide’ and connecting those areas with highly Republican rural areas up to 70 miles away.”⁷⁴Id. ¶ 90 (emphasis added). Expert Dr. Rodden further added “rather than combining Akron with its own suburbs, the enacted plan combines the city with Medina County in District 13 and ‘the most Republican outer exurbs of Cleveland.’” Id.

The Supreme Court of Ohio concluded the evidence supported beyond a reasonable doubt that the Commission’s district plan unfairly favored the Republican Party and unduly splits up counties to form unnatural districts.⁷⁵Id. ¶¶ 41, 61. As a result, the court invalidated the entirety of the Commission’s district plan because the unconstitutionality of the district plan “extends from one end of the state to the other.”⁷⁶Id. ¶ 96.

III. Discussion

A. Federal Responsibility over Gerrymandering

Manipulation of congressional districts can unduly abridge the right to vote. However, the Supreme Court held by a majority of the Court that issues of partisan gerrymandering do not have a clear, manageable standard and are therefore nonjusticiable.⁷⁷Rucho v. Common Cause, 139 S. Ct. 2484, 2497-98 (2019); see also Harris, supra note 27, at 39-43.While this holding remains the law of the land, the dissent in Rucho identified that the “manageable standards” for federal courts to decide gerrymandering issues already exists.⁷⁸Id. at 2509 (Kagan, J., dissenting). Justice Kagan, in her dissent, raised that partisan gerrymandering requires the Court to ensure citizens maintain their fundamental right to participate equally in the democracy through voting.⁷⁹Id. Further, legal scholars have argued that federal courts already have the legal framework in the federal Constitution to adjudicate issues of partisan gerrymandering.⁸⁰Harris, supra note 27, at 59, 85. The Fourteenth Amendment may very well provide the framework to protect against extreme gerrymandering on a federal level rather than relying on the individual states to incorporate their own provisions.⁸¹Id. Unfortunately, Rucho failed to fully address all issues that could rise under the Fourteenth Amendment related to district drawing, specifically Section Two, which concerns when the right to vote is “in any way abridged.”⁸²See id. at 37. The plaintiffs in League of Women Voters raised a claim of equal protection, but the Ohio Supreme Court also did not address the claim because Ohio’s Constitution already invalidated the whole district plan under Article XI. League of Women Voters of Ohio v. Ohio Redistricting Comm., No. 2022-Ohio-65, slip op. ¶ ¶ 132-33 (Jan. 12, 2022); U.S. Const. amend. 14.

B. Ohio’s Standard as a Model

Without a federal standard, states must act themselves to implement their own constitutional standards to prevent extreme partisan gerrymandering. Ohio sets a good example for other states to adopt and implement.

Unlike the federal courts, the Ohio Supreme Court has a clear and manageable standard set clearly in Ohio’s Constitution directly by the Ohio voters.⁸³Ohio Const. art. XI. Ohio’s standard works: the Ohio Supreme Court protected the rights of Ohio voters and enforced Ohio’s Constitution by invalidating the extreme district plan proposed in 2021 in League of Women Voters and Adams.⁸⁴League of Women Voters of Ohio v. Ohio Redistricting Comm., No. 2022-Ohio-65, slip op. ¶ 76 (Jan. 12, 2022).; Adams v. DeWine, No. 2022-Ohio-89, slip op. ¶ 6 (Jan. 14, 2022). If the federal government refuses to properly address the issue, then states must step up to prevent extreme gerrymandering, as Ohio has done.

Ohio’s Constitution outlines a procedure which still allows legislative representatives to control the maps, while mandating standards to prevent extreme gerrymandering.⁸⁵Ohio Const. art. XI. Ohio voters implemented these standards into the Constitution by direct vote and the Ohio Supreme Court simply held that the Ohio General Assembly must abide by the new standards.⁸⁶League of Women Voters, slip op. ¶ 84.The introduction of these standards and subsequent enforcement by the Ohio Supreme Court are actions that other states should follow and introduce into their own constitutions.

Ohio’s Article XI outlines a model process for redistricting. If followed correctly, a bipartisan redistricting commission would form and provide a district plan with bipartisan support.⁸⁷Id. at ¶ 56. Article XI outlines detailed explanations of how to draw districts and requirements regarding borders, splitting government units, and district population proportionality.⁸⁸Ohio Const. art. XI. Ohio’s Constitution also mandates that districts: correspond proportionally to political preferences of the state, not be drawn primarily to favor a party, and remain compact.⁸⁹Id. at § 6. Such provisions serve to prevent the extreme cracking and packing used to manipulate district voting pools and control the overall voting outcomes.

Ohio’s Constitution provides clear and manageable standards for preventing extreme gerrymandering. The provisions set out for a bipartisan process which requires the maps to fairly represent the true preferences of the state, avoid unduly favoring one party, and keep districts compact so as to avoid unfair manipulation of voter proportions.⁹⁰Ohio Const. art. XI, § 6; art. XIX § 2. Other states should strive to adopt similar standards to ensure judicial oversight has clear standards to prevent extreme gerrymandering. Maintaining the right to vote through a true representation of voter’s preferences requires clear, mandatory standards limits on gerrymandering in the redistricting process.

C. Alternative Standards

Ohio’s Constitution and subsequent enforcement by the Ohio Supreme Court sets a good example of measures to prevent extreme gerrymandering. However, states can implement other standards that may be even more effective.

1. A Backup Redistricting Commission

The delay of the Ohio Redistricting Commission’s proposed plan and failure to abide by the constitutional standards invalidating the plan caused an even greater time crunch for the Commission ahead of the November 2022 election cycle. With no failsafe written into Ohio’s Constitution to ensure a map is set for the next election cycle, the invalidated plan simply returns to the Commission for another attempt to produce a constitutional district map.⁹¹Ohio Const. art. XI, § 9. A map was approved in early March 2022 and the Ohio Supreme Court was initially not going to review it due to proximity to the 2022 election cycle and May primaries; however, the Court deemed this most recent map also unconstitutional because it still unduly favors the Republican Party. Karen Kasler & Andy Chow, Ohio Supreme Court Strikes Down Congressional Map Currently in Use for 2022 Election, The Statehouse News Bureau (July 19, 2022) https://www.statenews.org/2022-07-19/ohio-supreme-court-strikes-down-congressional-map-currently-in-use-for-2022-election.

A potential alternative or additional provision to Ohio’s Constitution is a backup commission.⁹²James Ruley, One Person, One Vote: Gerrymandering and the Independent Commission, A Global Perspective, 92 Ind. L.J. 783, 789 (2017). The backup commission provision would serve as a failsafe if the state’s legislature or the initial commission fails to achieve an acceptable district plan.⁹³Id. In case of the initial commission’s failure, the backup commission would be composed of non-legislative members to quickly propose an acceptable district plan. A backup commission would more strongly incentivize the primary commission to pass a map it designed and approved, rather than designating to the nonpartisan, backup commission.⁹⁴Id.Introducing a backup commission to the state constitution would allow the state legislature to continue to exercise discretion in redistricting, in accordance with all applicable laws, while ensuring their failure does not impact the next election cycle.

2. An Independent, Nonpartisan Redistricting Commission

Ohio’s Constitution mandates districts to proportionally represent voter preferences, remain as compact as possible, and not unduly favor or disfavor a political party.⁹⁵Ohio Const. art. XI, § 6; art. XIX, § 2. These standards should ensure that a district map protects individuals’ right to vote and most accurately reflects true voter preferences of a state. Adams and League of Women suggest the issue lies primarily in the commission’s inability to effectively agree to a map with bipartisan approval.⁹⁶Adams v. DeWine, No. 2022-Ohio-89, slip op. ¶ 1 (Jan. 14, 2022); League of Women Voters of Ohio v. Ohio Redistricting Comm., No. 2022-Ohio-65, slip op. ¶ 1 (Jan. 12, 2022). The commission ignored nearly every guideline set forth in Ohio’s Constitution.

Ohio’s Constitution currently mandates a commission consists of sitting executive branch members and members appointed by the House and Senate, including members of the second largest political party represented.⁹⁷Ohio Const. art. XI, § 1(A). This leaves the commission heavily influenced by the political parties and partisan interests. Despite requirements to ensure bipartisan support, the commission ignored these and voted along party lines.⁹⁸League of Women Voters ¶¶ 24, 121. This suggests more stringent constitutional provisions should be implemented to truly achieve a fair, non-gerrymandered district map.

A more proactive approach would start with a fully independent commission to perform the redistricting process, rather than making it the failsafe, backup plan. An independent commission would consist of members with no association to the state legislature.⁹⁹Ruley, supra note 164, at 790. The states should also require mandatory waiting periods for anyone in the independent commission to participate if they were a former representative, as well as mandatory waiting periods for those who served on the commission before they can run for public office.¹⁰⁰Id. at 805. This would further insulate the commission from partisan influence. If the goal is to fairly represent the voter preferences of a state and achieve a democratic republic representing the views of its citizens, a commission independent of partisan influence should fairly draw districts to achieve population proportionality and compactness.

Taking the independent commission a step further, states should mandate the independent commission consist of expert researchers proficient in map drawing technology and statistical analysis. The Ohio Supreme Court referenced several analytical experts and statistical data in its Adams opinion.¹⁰¹Adams, slip op. ¶ 1. Technology exists that allows experts to run several simulations in order to produce a data spread of predictive voting results based upon several series of potential maps.¹⁰²See id. ¶ 50. The average values from these simulations would serve as a good indicator for how maps should be drawn to most accurately capture the true preferences of the voters because the averages would closely represent voting outcomes that occur most frequently.¹⁰³See id. ¶ 42-51; see also the subsection, “[o]ther measures of partisan bias” for more metrics experts can utilize to measure partisanship. Id. ¶ 63. Relying on historical state voting data, experts can determine district distributions that reflect the preferences of voters as well as the constitutional requirements.¹⁰⁴Id. ¶ 50. States should adapt constitutional provisions requiring experts, as part of independent commissions, to adopt maps that provide a fair statistical reflection of voters.

The advancement of technology provides “both a threat and a promise.”¹⁰⁵Vieth v. Jubelirer, 541 U.S. 267 312 (2004) (Kennedy, J., concurring in part, dissenting in part). Statistical computing applications allow for experts, legislatures, scholars, and map drawers to simply input data and have maps produced within hours rather than months and with much greater precision.¹⁰⁶Kang, supra note 1. Such technology allows for maps to be drawn to optimize the accuracy of representing actual voter preferences and provide metrics to ensure parties are not unduly favored; on the other hand, technology also allows maps to be easily optimized to favor one party. These maps can still be manipulated to unduly favor a party, as further shown by the Commission’s recent district plan.¹⁰⁷Adams, slip op. ¶¶ 49-50. Requiring an independent commission and basing map drawing upon expert analysis of statistical simulations will maximize the separation of the district map drawing process from partisan influence.

IV. Conclusion

Present day gerrymandering in the United States raises greater concerns of abuse and stripping individual’s constitutional rights than it has in the past. The Supreme Court holds that federal courts shall not make determinations related to partisan gerrymandering due to a lack of clear standards to make such judgments. States, like Ohio, have introduced their own anti-gerrymandering standards; however, these are not strong enough. Ohio’s standards are good for preventing gerrymandering, but they are reactive in enforcement. States should introduce proactive provisions, such as failsafe plans or backup commissions, into their state constitutions in order to protect voters when the state legislatures fail to produce a constitutional map. With the extreme gerrymandering currently in the country, as a result of advanced technology and hyper-partisan interests, states should shift the responsibility of redistricting away from the legislatures seeking to maintain control and instead look to independent commissions and codify greater controls over the redistricting process to prevent gerrymandering.

Cover Photo by Andrew Neel on Unsplash

References

• 1

  Michael S. Kang, Hyperpartisan Gerrymandering, 61 B.C. L. Rev. 1379, 1441 (2020).

• 2

  See, e.g., Vieth v. Jubelirer, 541 U.S. 267 (2004); Davis v. Bandemer, 478 U.S. 109 (1986); Fortson v. Dorsey, 379 U.S. 433 (1965); see also, e.g., Whitford v. Gill, 218 F. Supp. 3d 837 (W.D. Wis. 2016).

• 3

  See Rucho v. Common Cause, 139 S. Ct. 2484 (2019).

• 4

  For a more comprehensive history of Gerrymandering in the U.S. see Kang, supra note 1.

• 5

  See Stephen K. Medvic, Gerrymandering: The Politics of Redistricting in the United States 3 (2021).

• 6

  Kang, supra note 1, at 1389.

• 7

  Medvic, supra note 5, at 3; see also Elections Clause, U.S. Const. art. I, § 4, cl. 1 (“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”).

• 8

  See Reynolds v. Sims, 377 U. S. 533, 566 (1964); Shaw v. Reno, 509 U.S. 630 (1993).

• 9

  Brian Duignan, Gerrymandering, Encyclopedia Britannica, https://www.britannica.com/topic/gerrymandering. (last visited July 29, 2022).

• 10

  Devon Ombres, The Recent History of Gerrymandering in Florida: Revitalizing Davis v. Bandemer and Florida’s Constitutional Requirements on Redistricting, 20 Wash. & Lee J. Civil Rts. & Soc. Just. 297, 317 (2014); see also Rucho v. Common Cause, 139 S. Ct. 2484, 2492 (2019) (“A ‘cracked’ district is one in which a party’s supporters are divided among multiple districts, so that they fall short of a majority in each; a ‘packed’ district is one in which a party’s supporters are highly concentrated, so they win that district by a large margin, ‘wasting’ many votes that would improve their chances in others.”).

• 11

  Medvic, supra note 5, at 4.

• 12

  Id. at 29.

• 13

  Kang, supra note 1.

• 14

  Id. at 1439-40.

• 15

  Id. at 1441.

• 16

  Id. at 1442.

• 17

  Id.

• 18

  See Rucho v. Common Cause, 139 S. Ct. 2484, 2495 (2019).

• 19

  U.S. Const. art. IV, § 4.

• 20

  Id.

• 21

  Id. at 39-43.

• 22

  Rucho v. Common Cause, 139 S. Ct. 2484 (2019).

• 23

  Rucho, 139 S. Ct. at 2491.

• 24

  Id. at 2491-93.

• 25

  Id. at 2488, 2496, 2501.

• 26

  Rucho, 139 S. Ct. at 2499.

• 27

  Adams v. DeWine, No. 2022-Ohio-89, slip op. ¶ 6 (Jan. 14, 2022) (citing Rucho, 139 S. Ct. at 2506-2507).

• 28

  See Benisek v. Lamone, 348 F. Supp. 3d 493, 523 (D. Md. 2018); Common Cause v. Rucho, 318 F. Supp. 3d 777, 941 (M.D.N.C. 2018); See, e.g., Whitford v. Gill, 218 F. Supp. 3d 837 (W.D. Wis. 2016); Nelson, supra note 30, at 1092 n.12.

• 29

  Adams v. DeWine, No. 2022-Ohio-89, slip op. ¶ 32 (Jan. 14, 2022) (citing Rucho, 139 S. Ct. at 2507).

• 30

  Ohio Const. art. XIX.

  See Also

  Demystifying Gerrymandering: Ap Human Geography Explained - ScienceSphere.blog

• 31

  League of Women Voters of Ohio v. Ohio Redistricting Comm., No. 2022-Ohio-65, slip op. ¶ 76 (Jan. 12, 2022); Adams, slip op. at ¶ 6.

• 32

  Ohio Const. art. XIX, § 1(A).

• 33

  League of Women Voters, slip op. ¶ 4.

• 34

  Ohio Const. art. XI, § 1(A). The commission specifically includes the governor, the state auditor, the secretary of state, and two appointed members from the senate–selected by the majority and minority party leaders, respectively–and two appointed members from the house of representatives–selected by the majority and minority party leaders, respectively. Id. at § 5.

• 35

  Ohio Const. art. XI, § 1(C).

• 36

  Id. at § 1(B)(3) (emphasis added).

• 37

  Id. at § 1(C).

• 38

  Id. at § 3(A).

• 39

  Id. at § 3(B).

• 40

  Id. at § 3(C), (D).

• 41

  Id.

• 42

  Id. at § 6.

• 43

  Id. at § 7.

• 44

  Id. at § 8.

• 45

  Id. at § 9(D)(3).

• 46

  Id. at § 9(D)(3).

• 47

  See Ohio Secretary of State, 2018 Official Election Results, https://www.ohiosos.gov/elections/election-results-and-data/2018-official-elections-results/ [https://perma.cc/RG5P-39FT] (last visited July 31, 2022).

• 48

  Ohio Const. art. XIX, § 1(3).

• 49

  Ohio Const. art. XI, § 9; art. XIX, § 3.

• 50

  League of Women Voters, slip op. ¶ 10. The 2021 commission consisted of Governor Mike DeWine (Republican), Secretary of State Frank LaRose (Republican), Auditor of State Keith Faber (Republican), Speaker of the House Robert Cupp (Republican), and President of the Senate Matthew Huffman (Republican), House Minority Leader Emilia Sykes (Democrat), and Senator Vernon Sykes (Democrat). Id.

• 51

  Id. ¶ 12.

• 52

  Id. ¶¶ 16, 21-23. The last decade of statewide partisan elections reflected: “Republican candidates had won 54 percent of the vote share and Democratic candidates had won 46 percent of the vote share.” The proposal by House Speaker Cupp and Senate President Huffman initially started with thirty-two seats leaning Democrat and sixty-seven seats leaning Republican. The final accepted plan for the Commission’s proposal (“commission’s district plan”) included thirty-seven House seats leaning Democrat and sixty-two seats leaning Republican. Id. ¶ 47.

• 53

  Adams, slip op. at ¶ 21.

• 54

  Id. ¶¶ 21, 23.

• 55

  League of Women Voters, slip op. ¶ 1.

• 56

  Id. ¶ 82.

• 57

  Id. ¶¶ 82-84.

• 58

  Id. ¶ 101.

• 59

  Id. ¶ 116.

• 60

  Id. ¶ 119. Cupp and Huffman designated Ray DiRossi and Blake Springhetti, the finance directors of the Senate and House, respectively, as the map drawers. Id. ¶¶ 14, 34. Cupp and Huffman then also restricted other Commission members from discussing with DiRossi and Springhetti about the maps. Id. ¶ 39.

• 61

  Id. ¶¶ 24, 121.

• 62

  Id. ¶ 128.

• 63

  Id. ¶ 138.

• 64

  Adams, slip op. ¶¶ 100-02.

• 65

  Id. ¶¶ 46-47 (Dr. Warshaw noted Republicans were favored to win in the three competitive districts).

• 66

  Id. ¶ 48 (generating 5,000 Article XIX–compliant simulated plans).

• 67

  Id. ¶¶ 48-51 (Dr. Chen found that only 1.3% of simulated maps produced 12 seats to Republicans, the number in the newly accepted district map).

• 68

  Id. ¶ 51.

• 69

  Id. ¶ 53.

• 70

  Id. ¶ 56.

• 71

  Id. ¶¶ 56, 84-88.

• 72

  Id. ¶¶ 58-60.

• 73

  Id. ¶ 61.

• 74

  Id. ¶ 90 (emphasis added). Expert Dr. Rodden further added “rather than combining Akron with its own suburbs, the enacted plan combines the city with Medina County in District 13 and ‘the most Republican outer exurbs of Cleveland.’” Id.

• 75

  Id. ¶¶ 41, 61.

• 76

  Id. ¶ 96.

• 77

  Rucho v. Common Cause, 139 S. Ct. 2484, 2497-98 (2019); see also Harris, supra note 27, at 39-43.

• 78

  Id. at 2509 (Kagan, J., dissenting).

• 79

  Id.

• 80

  Harris, supra note 27, at 59, 85.

• 81

  Id.

• 82

  See id. at 37. The plaintiffs in League of Women Voters raised a claim of equal protection, but the Ohio Supreme Court also did not address the claim because Ohio’s Constitution already invalidated the whole district plan under Article XI. League of Women Voters of Ohio v. Ohio Redistricting Comm., No. 2022-Ohio-65, slip op. ¶ ¶ 132-33 (Jan. 12, 2022); U.S. Const. amend. 14.

• 83

  Ohio Const. art. XI.

• 84

  League of Women Voters of Ohio v. Ohio Redistricting Comm., No. 2022-Ohio-65, slip op. ¶ 76 (Jan. 12, 2022).; Adams v. DeWine, No. 2022-Ohio-89, slip op. ¶ 6 (Jan. 14, 2022).

• 85

  Ohio Const. art. XI.

• 86

  League of Women Voters, slip op. ¶ 84.

• 87

  Id. at ¶ 56.

• 88

  Ohio Const. art. XI.

• 89

  Id. at § 6.

• 90

  Ohio Const. art. XI, § 6; art. XIX § 2.

• 91

  Ohio Const. art. XI, § 9. A map was approved in early March 2022 and the Ohio Supreme Court was initially not going to review it due to proximity to the 2022 election cycle and May primaries; however, the Court deemed this most recent map also unconstitutional because it still unduly favors the Republican Party. Karen Kasler & Andy Chow, Ohio Supreme Court Strikes Down Congressional Map Currently in Use for 2022 Election, The Statehouse News Bureau (July 19, 2022) https://www.statenews.org/2022-07-19/ohio-supreme-court-strikes-down-congressional-map-currently-in-use-for-2022-election.

• 92

  James Ruley, One Person, One Vote: Gerrymandering and the Independent Commission, A Global Perspective, 92 Ind. L.J. 783, 789 (2017).

• 93

  Id.

• 94

  Id.

• 95

  Ohio Const. art. XI, § 6; art. XIX, § 2.

• 96

  Adams v. DeWine, No. 2022-Ohio-89, slip op. ¶ 1 (Jan. 14, 2022); League of Women Voters of Ohio v. Ohio Redistricting Comm., No. 2022-Ohio-65, slip op. ¶ 1 (Jan. 12, 2022).

• 97

  Ohio Const. art. XI, § 1(A).

• 98

  League of Women Voters ¶¶ 24, 121.

• 99

  Ruley, supra note 164, at 790.

• 100

  Id. at 805.

• 101

  Adams, slip op. ¶ 1.

• 102

  See id. ¶ 50.

• 103

  See id. ¶ 42-51; see also the subsection, “[o]ther measures of partisan bias” for more metrics experts can utilize to measure partisanship. Id. ¶ 63.

• 104

  Id. ¶ 50.

• 105

  Vieth v. Jubelirer, 541 U.S. 267 312 (2004) (Kennedy, J., concurring in part, dissenting in part).

• 106

  Kang, supra note 1.

• 107

  Adams, slip op. ¶¶ 49-50.