A three-judge federal court has hijacked Ohio's legislative redistricting process and rewarded Republican obstructionism by announcing on Wednesday that if the state's GOP-dominated redistricting commission fails to produce constitutional maps by May 28, it will implement maps that the state Supreme Court previously ruled were unconstitutional instead.
The Ohio Supreme Court has rejected four different sets of maps for the state House and state Senate drawn by the commission, all for the same reason: They violated voter-approved amendments to the state constitution barring partisan gerrymandering. Those same amendments, however, forbid state courts from ordering the adoption of judicially crafted maps, leaving the Supreme Court with the power merely to order the commission—which consists of five Republicans and just two Democrats—to keep trying again.
But now Republicans have no incentive to try a fifth time, as the Supreme Court recently ordered, because if they fail to do so, the federal court will simply impose their third set of maps. In a 2-1 decision, two judges appointed by Donald Trump said they'd adopt those maps—despite the fact the Supreme Court found they violated the state constitution "beyond a reasonable doubt"—simply because Republican Secretary of State Frank LaRose told local election officials to prepare to use them before the justices had a chance to rule on their validity.
Listen and subscribe to Daily Kos Elections’ The Downballot podcast with David Nir and David Beard
Federal courts cannot be barred by the Ohio constitution from imposing their own maps to remedy violations of the U.S. Constitution, and in fact they must do so in the event of an impasse to ensure that elections can be held using legal maps. (The GOP-drawn maps the state used for the last decade are now badly malapportioned in addition to being gerrymandered.) But in a dissent, Judge Algenon Marbley, who was named to the bench by Bill Clinton, castigated the majority for failing to "respect state policies to the maximum extent" by settling on plans that are "irredeemably flawed."
Instead, said Marbley, the state should use a plan crafted by a pair of outside mapmakers hired by the commission, which expert witnesses who testified before the federal court said "satisfies all constitutional requirements" with minor changes. The commission claimed it abandoned that plan because it was incomplete—a reason the majority cited for spurning it—but Marbley noted that an expert for opponents of the GOP's maps completed the necessary adjustments in a matter of hours.
Yet with the majority's decision, "Republican Commissioners will benefit directly from a crisis they created," wrote Marbley, "and which the Ohio Supreme Court has attributed squarely to them." And because the GOP's maps would only take effect for 2022, the same situation could unfold in future years. As Marbley explained, "The 2024 Commission, faced with the options of ceding political power or simply waiting out adverse court decisions, likely will be tempted to take the same course."
Unmentioned by the dissent is that Republicans are trying to wait out the state Supreme Court in another way as well: Control of the court is up for grabs in November, and the outcome could easily yield a majority that would side with the GOP in any future disputes since the court's redistricting rulings this year have all been on a 4-3 basis.
Democrats and redistricting reformers are essentially out of options at this point. While an appeal of the federal court's ruling is possible, any such appeal would go directly to the U.S. Supreme Court, where challengers would expect a very unfriendly reception. The Ohio Supreme Court, meanwhile, has contemplated holding commissioners in contempt. To date it's declined to do so, but even if it does, there's no reason to think Republicans would produce constitutional maps since they'll get exactly what they want as long as they hold out until May 28.