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Analysis

The Ohio Redistricting Fight Isn’t a Mess. It’s Progress.

The Ohio Supreme Court is standing up to partisans on behalf of voters.

April 19, 2022
A map of Ohio, split in half and taped together.
PytyCzech, loops7, Globe Turner / Getty

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When I was a law student, I got the chance to hear Justice William Bren­nan speak at NYU School of Law. To my surprise, the lion of the U.S. Supreme Court didn’t speak about Baker v. Carr or New York Times v. Sulli­van or his other great decisions. He talked instead about state courts and state consti­tu­tions. They were, he said, under­ap­pre­ci­ated “guard­i­ans of indi­vidual rights.” It was the first flush of the conser­vat­ive wave in federal courts, and Bren­nan, who had been a state supreme court justice himself, knew how much latent power and prom­ise there was in our feder­al­ist system.  

This week, we saw that insight play out in Ohio. The Ohio Supreme Court struck down a highly gerry­mandered legis­lat­ive map, for the fourth time in the past year. That’s no typo. 

The first version of the map would have given Repub­lic­ans likely super­ma­jor­it­ies in both houses of the legis­lature with just 54 percent of the statewide vote. The Court keeps strik­ing down the maps; a politi­cian-controlled commis­sion keeps submit­ting barely-changed gerry­manders. For good meas­ure, the Repub­lic­ans now are trying to impeach the Supreme Court’s chief justice (also a Repub­lican). 

Yes, another frus­trat­ing tale of polit­ics in 2022.  But look closer: what’s signi­fic­ant here is that it is the state supreme court, not the U.S. Supreme Court, that’s stand­ing up for a fair demo­cracy. 

Over the past decade, the federal govern­ment has aban­doned its role in protect­ing voting rights. The U.S. Supreme Court evis­cer­ated the Voting Rights Act in a series of rulings, most notori­ously Shelby County in 2013. Then in 2019, in Rucho v. Common Cause, the Supreme Court said that partisan gerry­man­der­ing is bad, truly, but there is noth­ing the federal courts can do about it – indeed, the justices barred federal courts from even hear­ing such claims. Congress has the power to act, and tried to do so with the Free­dom to Vote: John Lewis Voting Rights Act. We all know how that turned out.

The with­drawal of Uncle Sam has left a gaping void in the voting rights arena, and states have begun to fill it. Every state but one has a stronger expli­cit protec­tion for the right to vote than the federal consti­tu­tion does. State courts, many of which used to inter­pret their consti­tu­tional provi­sions on voting rights as being synonym­ous with whatever the Supreme Court says the federal consti­tu­tion means, are also find­ing their voices.  Courts in North Caro­lina, Arizona, Mary­land, and New York have all recently struck down legis­lat­ive maps for partisan gerry­man­der­ing.

Citizens them­selves have passed initi­at­ives to restore voting rights to formerly incar­cer­ated people, create inde­pend­ent redis­trict­ing commis­sions, and ban gerry­man­der­ing. Just four years ago voters in Michigan, Color­ado, Missouri, and Utah enacted redis­trict­ing reform. 

Indeed, in Ohio it was a ballot meas­ure that set the stand­ards now being enforced by the court, in litig­a­tion brought by the Bren­nan Center and others. 

The fight is far from over. State offi­cials in Wiscon­sin, for example, stub­bornly cling to gerry­man­der­ing to main­tain their grip on power. And we don’t know how the Ohio story will end. Repub­lic­ans have appealed to the federal courts to side­line the state supreme court, and the redis­trict­ing commis­sion remains unre­pent­ant.  

Above all, there is simply no substi­tute for federal action to protect voting rights and strengthen demo­cracy. The Free­dom to Vote Act bars gerry­man­der­ing in Ohio and forty-nine other states. But if Congress cannot act, even with a major­ity in support, because of the fili­buster, and federal courts will not act, then we have no choice but to press forward with other strategies. The states, their courts, and their consti­tu­tions offer a very prom­ising avenue.