With Justice Anthony Kennedy expected to be the pivotal key vote, the U.S. Supreme Court will decide whether the Constitution prohibits states from drawing congressional and legislative seats that favor one party and reduce electoral competition.
For voters across the country, the case could have seismic impact, changing how political power is determined. In Ohio, where advocates for change have decried what they claim is a highly partisan and unfair system, Republicans control 12 of the state’s 16 congressional seats.
The justices said Monday they would hear oral arguments later this year on a Wisconsin case in which the Republicans designed districts allowing the GOP to seize overwhelming control of the state assembly in 2012 despite winning less than half the votes cast statewide that year.
Although the issue concerns the drawing of legislative districts in just one state, the judicial reasoning in the Wisconsin case could apply to congressional districts elsewhere, including in Ohio.
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Critics of the Ohio system have long argued that political parties draw safe districts designed to preserve power and eliminate competition.
Known as gerrymandering, the practice has been part of American politics since the early days of the Republic. But parties now use computers to draw districts that critics say are meant to reduce competition. In addition, they say, the heavily packed districts lead to candidates from the far right or left defeating more moderate lawmakers who are more likely to compromise on major issues.
Kennedy, who indicated a concern about unfair treatment of voters in a 2oo4 case, could be the swing vote.
When the justices in 2004 upheld a Pennsylvania redistricting plan, Kennedy made clear he would welcome a challenge to partisan redistricting by relying on the First Amendment, which guarantees freedom of speech.
“First Amendment concerns arise where a state enacts a law that has the purpose and effect of subjecting a group of voters or their party to disfavored treatment by reason of their views,” Kennedy wrote in the case, Vieth v. Jubelirer.
“In the context of partisan gerrymandering, that means that First Amendment concerns arise where an apportionment has the purpose and effect of burdening a group of voters’ representational rights,” he wrote.
Edward Foley, a professor of law at Ohio State University, said Kennedy “already thinks partisan gerrymandering is evil. He’s just not sure it is unconstitutional. In order for him to invalidate the Wisconsin map, he needs to be able to identify a principle rooted in the Constitution.”
A federal district court made up of three judges last year specifically cited Kennedy’s concurring opinion in Jubelirer when they struck down the Wisconsin map.
Ohio lawmakers approved a major overhaul of the way Ohio’s state legislative districts are designed, a move that voters ratified in 2015.
Advocates of more competitive congressional districts hope to place an initiative on the Ohio ballot either this year or next to draw up maps in a bipartisan fashion with rules designed to create more competition and prohibit geographically outlandish districts.
“It is likely it will be next year,” said Catherine Turcer of Common Cause Ohio and a supporter of the ballot issue. “What is important is we get it done before 2020,” which is one year before Ohio lawmakers have to design new congressional districts.
The legislature in Ohio has the power to design congressional districts. In the past, state legislative districts were designed by an apportionment board that includes the governor, state auditor, secretary of state and both houses of the legislature. Whichever party controls the governor’s office and the legislature had the authority to design plans that helped their party win more seats.