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State redistricting lands back on the ballot
RICHARD WEINER
Legal News Reporter
Published: July 27, 2015
The Ohio electorate will have the opportunity to pass a proposed amendment to the Ohio Constitution that would create a new format for redistricting state elections following the 2020 census.
The effect of the U.S. Supreme Court’s recent redistricting decision on Ohio law, however, is not yet clear, according to experts in the field.
Ohio’s proposed amendment, which will appear on the November ballot as Issue 1, was passed by a bipartisan Ohio legislature in December 2014 as HJR 12, led by two outgoing legislators-- Democrat Vernon Sykes and Republican Matthew Huffman.
It is a reimagining of how the current seven-person redistricting panel could work in a bipartisan fashion, but it is only applicable to the state legislative elections and not the federal legislative district elections, said Carrie L. Davis, executive director of the Ohio League of Women Voters.
She said Issue 1 has the support of several organizations that include OLWV and the Ohio State Bar Association which opposed Issue 2 in 2012––Ohio’s previous attempt at taking redistricting reform to the voters.
Sykes and Huffman, who were both term-limited out of legislative office, now are acting as co-chairs of the Issue 1 effort, a “bipartisan coalition effort” called “Fair Districts for Ohio” (http://fairdistrictsforohio.com).
At its core, the constitutional amendment of Issue 1 would keep the same basic structure of the current redistricting panel, but will require at least two members of each of the two major political parties to agree to any changes in the electoral districts, said Davis.
The proposed Ohio redistricting committee would be comprised of seven members which include the governor, the state auditor, the secretary of state and one individual each appointed by the speaker of the house, the house leader of the other, largest political party, he president of the state senate the senate leader of the other largest political party.
While similar to the 2012 redistricting attempt, the current Issue 1 eliminates the participation of the judiciary in the panel, which was a particular sticking point for the OSBA at the time.
Todd Book, the OSBA’s director of policy and government affairs, said, “The OSBA is supportive of the state redistricting proposal that will be on the November Ballot. The (OSBA) Board of Governors officially became supportive at the April 2015 meeting. After the defeat of Issue 2 in 2012, the OSBA called upon the legislature to bring forward a bipartisan plan for redistricting that did not improperly involve the judiciary. The legislature heard our call and we are supportive of th(is) measure.”
“Tthis is the first time that we have seen both sides (the two major political parties in the state) get together, meet in the middle, find a compromise, and move forward on this issue,” said Davis.
HJR 12 was passed prior to the redistricting decision of the U.S. Supreme Court in Arizona State Legislature v. Arizona Independent Redistricting Commission. That case will not affect Issue 1, said Davis, but may impact Ohio law in the long run.
“It is a question of timing,” Davis said. “Issue 1 will only be applicable to state law because the legislature knew that the Arizona decision was coming, and that how the court would rule in that case would determine the parameters of any state law.”
There is already movement afoot to create another ballot measure that would affect federal redistricting, both Davis and Book said.
“The Arizona case allows Congressional district lines to be drawn by groups other than the state legislature,” said Book. “In Ohio, the Congressional district lines are still drawn by the state legislature. There is talk that another ballot measure may be put on in 2016 to allow Ohio’s Congressional lines to be drawn by a group other than the state legislature. We will be following those developments, but, at this time, the OSBA has not taken a position on congressional lines.”
The basic holding of the Arizona case, according to an “in plain English” description of the decision posted on SCOTUSblog, was that voters could take redistricting out of the hands of the state legislature and put it into the hands of an independent commission.
A considerable amount of the discussion in both the majority decision, authored by Justice Ruth Bader Ginsburg, and the dissent, authored by Chief Justice John Roberts, revolve around the definition of the word “legislature” as found in the elections clause of the U.S. Constitution.
The 5-4 Arizona decision, was not without controversy, not the least of which is that both the decision and the dissent revolved around very arcane interpretations of language, said Akron attorney Carmen Roberto.
“I thought that the majority decision was correct,” said Roberto, who also weighed in in the Legal News coverage of Issue 2 in 2012. “But it is a very complex decision, and I think that neither the decision, nor the dissent, are easily understandable to non-lawyers.”
Capitol University law school professor Mark R. Brown, who was also quoted in the Issue 2 article, had the opposite opinion about the Arizona case. “The majority got it wrong,” he said.
Brown’s discussion of Issue 2 had keyed around his opinion, at the time, that it would be unconstitutional to empower an independent redistricting board. The U.S. Supreme Court, however, just held the opposite, and now, said Brown, “I suspect that Ohio can put together some kind of independent commission like Arizona and California have.”
Although the law may not now favor his view, Brown maintains a distrust of independent redistricting commissions, he said, because they are not directly accountable to the general electorate in the way that the legislature is.
It is because of that view, he said that he was, “very surprised by the outcome in the Arizona case, especially given the way that the oral arguments went. I thought that Justice Kennedy would be on the other side, and he surprised me.”
Roberto also felt that the Arizona decision could have an impact on Ohio.
“The best thing about that decision,” he said, “was that I believe that it sets a foundation for Ohio that, if the will of the people is to change (the redistricting system), then the people can probably make that change.”