VOICES: Legislative redistricting: Has the experiment failed?

J. Donald Mottley, a former State Representative from Montgomery County, is now a state and local tax attorney with Taft Stettinius & Hollister LLP.
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J. Donald Mottley, a former State Representative from Montgomery County, is now a state and local tax attorney with Taft Stettinius & Hollister LLP.

From 1972 until 1994, the Ohio House of Representatives had a Democratic majority, even though for half of those years it had a Republican Governor. For all but two years since then, the House had a Republican majority. The reason for this is simple: for the first 20 years of this period, Democratic officeholders drew the districts from which these Representatives were elected, and since then Republican officeholders have drawn the districts. Each party, when in control, drew districts that favored itself. And the process by which they were drawn was far from open and transparent. The State Apportionment Board (now the Redistricting Commission) usually had two brief meetings: one on the day required by law for its first meeting, and one on the day by which it was required to approve new legislative districts. In the meantime, the staff of the party which held the majority on that Board analyzed census and election data, and drew maps that favored their party. The resulting plan was the only one presented to and considered by the Apportionment Board, which then approved it on a party-line vote with no public hearings or input. That is gerrymandering, a practice that goes back at least to Massachusetts Governor Eldridge Gerry, one of our Founding Fathers, in the early 1800s.

One-party control of the redistricting process has many unpleasant consequences. A long-time State Representative was told that his district would be redrawn unfavorably unless he agreed to vote the Governor’s way on a controversial issue. He did not agree, the district was redrawn as threatened, and he lost the next election.

In 2015, thanks to a rare bipartisan agreement that also had the support of the League of Women Voters, Ohio voters changed how Ohio’s legislative districts are drawn, beginning in 2021. Time will tell whether this change actually stops gerrymandering. The new method was, and remains, an experiment.

The new method increased public input and transparency. The Apportionment Board held multiple public hearings around the state, and received maps proposed by many groups. Most of these maps would give Republicans a majority, but a majority that was closer to the actual percentage of Ohio’s votes received by Republican candidates (called “representational fairness”). The new process promotes “representational fairness” in several ways. It is one of the standards that the Redistricting Commission “shall attempt” to meet in drawing districts. Any interested party may present a plan for consideration, and there are multiple public meetings and hearings. And there is now a powerful incentive for a bipartisan agreement on the district lines. Unless new districts are approved by a bipartisan majority, they are in effect for 4 years instead of the normal 10. Since neither party wants to have the districts change after only 4 years, Republicans and Democrats have a reason to work together in drawing districts.

ExploreRead Ohio Senate President Matt Huffman's defense of the new maps.

This time, the incentive did not work. Republicans and Democrats did not reach an agreement, so Republicans approved their plan by a party line vote. Thus, the districts may be in effect for only 4 years. Governor DeWine received 50.4% of the vote in 2018, and President Trump 53.3% of the Ohio vote in 2020. But Republicans are likely to control 2/3s of each House under the just-approved districts.

Does this mean that the new redistricting process is now a failed experiment? In fairness, getting the needed Census data several months late this year made it more difficult to reach agreement. And, there are still two more steps before the districts are final. The Ohio Supreme Court will almost certainly be asked to review whether the districts approved by the Apportionment Board comply with the Ohio Constitution. If they find that the Ohio Constitution was violated, they can order the Apportionment Board to redraw the districts. The Ohio Supreme Court can consider, among other things, whether the districts reflect the statewide voter preferences for each major party over the last 10 years.

Explore Read the Ohio Citizens' Redistricting Commission's critique of the new maps.

I also expect a challenge to the new districts in Federal Court under the Voting Rights Act. But the Voting Rights Act is primarily concerned with whether the new districts disadvantage voters based on race. In the past, Ohio districts clearly favoring one party have still been found to comply with the Voting Rights Act.

So it is still too early to know whether the new method for drawing Ohio’s legislative districts is a failed experiment. Voters clearly want an end to gerrymandering. But if the 2015 amendment does not end it, voters have the power to make further changes by amending the Ohio Constitution again.

J. Donald Mottley, a former State Representative from Montgomery County, is now a state and local tax attorney with Taft Stettinius & Hollister LLP.

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