A lot is happening on the redistricting front, including a potentially consequential ruling by the U.S. Supreme Court.
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Justices are expected to rule in June on a Wisconsin case that may for the first time result in the court prohibiting partisan-based gerrymandering, which is the practice of drawing districts to favor a certain political party or candidate.
“That decision could change the landscape in Ohio and every other state in the country,” said Mark Caleb Smith, director of the Center for Political Studies at Cedarville University.
Redistricting reform efforts are widespread. Reform legislation was introduced in 28 states this year and citizen-led initiatives were proposed in at least eight states, according to data collected by the National Conference of State Legislatures and the Brennan Center for Justice.
Ohio voters in 2015 showed a big interest in reforming the current system when 71 percent approved changes in the way state legislative districts are drawn.
That constitutional amendment set up an expanded redistricting commission that gave the minority party more power, and included rules discouraging partisanship and requiring compact, competitive districts and a transparent redistricting process.
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Devine called that vote "a really strong wind for reform" that is fueling efforts now to reform how congressional districts are drawn in Ohio.
The flurry of activity comes as the constitutionally mandated 2020 Census looms. If new systems aren’t put in place by then, the Congressional redistricting reforms will have to wait another decade until after the 2030 Census.
The Supreme Court long ago ruled that it is unconstitutional to racially gerrymander districts, a prohibition reinforced in a ruling this year on North Carolina’s redistricting map. But, Smith said, justices have never settled on a way to determine when partisan gerrymandering goes too far.
The justices appeared divided during arguments in the Wisconsin case, known as Gill v. Whitford, with Justice Anthony Kennedy likely to take on the familiar role of tie breaker, said Edward Foley, a law professor at Ohio State University’s Moritz College of Law.
Foley said Kennedy “is on the public record saying he’s very troubled by partisan gerrymandering and he sees it as an affront to democracy.”
Republican lawmakers in Wisconsin were accused of seriously skewing the state’s legislative districts in favor of Republicans when the maps were redrawn in 2011. Wisconsin Republican lawmakers said the map was not intentionally partisan, but instead reflected the fact that many Democrats lived in urban areas and Republicans were more evenly spread out across the state, according to a case description by the Brennan Center, a non-partisan public policy institute at the New York University School of Law.
A panel of three federal judges disagreed, finding the Republican maps were unconstitutional partisan gerrymandering, violating the First Amendment and the 14th Amendment’s equal protection clause.
The Supreme Court heard oral arguments in the case in October and is expected early next year to hear arguments in a separate case from Maryland — Benisek v. Lamone. In that case, Republicans allege that congressional district maps drawn by Democrats were designed to punish voters who supported Republican candidates.
Foley said the court is at “a major fork in the road.”
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"One direction is the court basically abandoning any role to try to police excessive partisanship in these maps. The other fork in the road would take the federal judiciary down the path of being something of a police officer on this issue," he said.
Even if the high court rules against partisan gerrymandering, Foley does not anticipate the justices would put courts in charge of redistricting.
“They’re going to give states latitude, but they’ll say there’s a boundary of how much partisanship you can inject, and when you go too far we’re going to put a brake and a limit on it,’” Foley said. “If a state legislature acts with too much partisan greed, so to speak, in drawing lines then the federal courts will intervene and say, ‘No, no, no, that’s too greedy.’”
Computers change game
Partisan gerrymandering and calls for reform are not new, but powerful computers and the availability of massive datasets have dramatically changed how precisely a district can be drawn to protect a certain party or an incumbent.
Partisan map drawers can now carefully place voters of one party or another into a district, and know exactly what their voting patterns are.
Those decisions stay in place too, because legislative and congressional district lines are redrawn only every 10 years.
The new boundaries are supposed to reflect population shifts after the decennial census. Although differing rules govern how Ohio draws state and congressional district boundaries, essentially the party that controls state government has controlled the redrawing of the districts.
Ohio’s drop in population cost it two congressional seats in the 2011 redistricting, and the state may lose another seat after 2020, according to estimates. Ohio now has 16 House members — 12 Republicans and four Democrats.
RELATED: Issue 1 would change how legislative lines are drawn
Federal law requires that districts be as equal in population as possible, that its parts be contiguous and that the district lines not dilute minority voting strength. But there is no law against packing a district with members of a single political party or dividing up a certain party's members to dilute their power.
And that’s what has happened — in Ohio and many other states. Prior to Issue 1, the 2015 constitutional amendment that was approved overwhelming by voters, Ohio had no rules requiring transparency or language about banning partisanship. The initiative called for a bipartisan commission to be involved the redrawing of district boundaries, but it only pertains to legislative seats and not members of Congress.
A coalition of groups is currently gathering signatures to put a congressional redistricting proposal on the November 2018 ballot.
The Republican wave that occurred in 2010 — the first mid-term after Barack Obama won the presidency — helped the GOP control political-map drawing in state after state, including Ohio.
A 2017 study Brennan Center of election results since then found that the decade’s congressional maps “are consistently biased in favor of Republicans,” according to the center’s Extreme Maps report. The group studied the 26 states that have six or more congressional districts — accounting for 85 percent of Congressional districts. It found that because of partisan bias in redistricting, Republicans currently have a net benefit of 16 to 17 seats in the current Congress.
Those 16 to 17 seats can be the difference between bills passing or failing. If Democrats had 16 more House seats, for example, the tax reform package that President Donald Trump signed on Friday would not have passed.
“Michigan, North Carolina and Pennsylvania consistently have the most extreme levels of partisan bias,” the report says. “Florida, Ohio, Texas and Virginia have less severe partisan bias but jointly account for most of the remaining net extra Republican seats in the examined states.”
There was no high level of bias in states with maps drawn by commissions, courts or states without one party control, the Brennan Center found.
“There is strong evidence that the bias in this decade’s congressional maps is not accidental,” the report said. “With the exception of Texas, all of the most biased maps are in battleground states.”
Ohio’s congressional districts sprawl across multiple counties — dividing cities and counties alike. Summit County, home to Akron, is divided into four congressional districts, but not a single one of the representatives lives in that county.
Ohio’s districts are are also known for their sometimes odd shapes. Congressional district nine, held by U.S. Rep. Marcy Kaptur. D-Toledo, is narrow and long, earning the nickname “snake by the lake.” District 4, which sprawls over 14 counties and is held by U.S. Rep. Jim Jordan, R-Urbana, is called the “duck district” and its tiny tail curls into Mercer County, a rural county represented by two other congressmen besides Jordan.
The districts were drawn by Republican state legislators entirely in secret with little opportunity for public input. Still, Republicans defend the maps, saying voters can decide every two years who to elect. They also say the state is becoming more red, noting that President Donald Trump won the state by more than eight percentage points and Republicans like Rob Portman, John Kasich and others have won their recent statewide elections in landslides.
The congressional amendment that a citizen’s group hopes to put on the ballot next fall would mostly mirror the 2015 voter-approved reform of state legislative redistricting. Fair Districts =Fair Elections, a coalition of good-government groups that includes Common Cause of Ohio and the League of Women Voters of Ohio, has gathered 178,000 of the 305,591 needed to put on the November ballot, said Catherine Turcer, executive director of Common Cause Ohio.
“You need those good rules embedded in the Ohio Constitution,” said Turcer.
Two prominent Republicans — Kasich and Secretary of State Jon Husted, who is running for lieutenant governor — have long advocated for reforming the redistricting process.
“Ideas and merits should be what wins elections, not gerrymandering,” Kaisch said in his 2016 State of the State address. “When pure politics is what drives these kinds of decisions, the result is polarization and division. I think we’ve had enough of that. Gerrymandering needs to be on the dust bin of history.”
RELATED: Kasich backs redistricting reform
State Sen. Matt Huffman, R-Lima, a member of a four-man bipartisan working group set up by Republican legislative leaders said he anticipates the group's version of redistricting reform will be ready to present to the legislature in early January. The goal is to place the proposed new system on the May 8 primary ballot, he said.
While the proposal will include “shades of Issue 1,” according to Huffman, he and Senate President Larry Obhof agree that “the General Assembly has to have some substantial control,” Huffman said.
Neither Huffman nor fellow working group member Sen. Vernon Sykes, D-Akron, would detail what the group’s proposal may look like. But Sykes said he supports the Fair Districts = Fair Elections proposal, which calls for a bipartisan approach to district map-drawing.
RELATED: Issue 1 would change how legislative lines are drawn
Cedarville's Smith said it's doubtful the legislature's Republican majority will approve something that "significantly takes partisanship out of the process."
“The Republicans are in such control I have a hard time seeing them give up that kind of power,” he said.
Smith also questions whether changing the redistricting process will curtail polarization and the partisanship that is so endemic in American politics.
“I think if we were able to just magically wave a wand and get rid of partisan gerrymandering you would see some changes,” Smith said. “But you’re not going to wish away the culture war. You are not going to remove tribalization.”
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Proposed citizen initiative for state constitutional amendment reforming congressional redistricting
- Would remove the state legislature's power to directly draw districts.
- New Ohio Redistricting Commission would consist of governor, secretary of state, state auditor, and one person each appointed by the Ohio House and Senate majority and minority leaders. No member of Congress could serve on it.
- Map approval requires majority vote, including at least two members of minority party.
- Outlaws drawing a map to favor or disfavor one party or candidate.
- Districts must be nearly equal in population.
- Map should minimize splitting of counties, municipalities and townships.
- Districts must be compact and geographically contiguous.
- Requires representational fairness, using a ten-year tally of Ohio voters partisan preferences.
- Follows state and federal laws protecting minority representation.
- The commission must release its proposed plan to the public, hold at least three public hearing and seek public input.
Source: Fair Districts = Fair Elections