The Ohio Supreme Court largely approved a summary of Anti-Gerrymandering Amendment 1 filed in November, sending it back to the Ohio Ballot Board for only two of the eight requested amendments.
The 4-3 Republican majority rejected the remaining six amendments submitted by anti-gerrymandering advocates, while the court’s Democratic justices said they were insufficient and that the summary required “almost complete redrafting.”
Although the court accepted most of the wording in the summary decision issued on Monday eveningordered the board to include “language in the summary that accurately conveys” that “the public will have the right to voice its opinion on the new redistricting commission” under the terms of an amendment drafted by the anti-gerrymandering coalition Citizens, Not Politicians.
“In short, the proposed amendment would ensure the public’s right to participate in the redistricting process through meetings, hearings, and an online public portal, and would prohibit communications with commission members and staff outside the context of public meetings and the portal,” the court wrote.
The second amendment ordered by the court requires the Electoral Commission to make clear that judicial review of this amendment is not constrained to the “proportionality standard.”
The current seven-member Ohio Redistricting Commission is composed of the Speaker of the Ohio House of Representatives and the President of the Ohio Senate, as well as the Governor, Secretary of State, State Auditor, and the two minority party legislative leaders.
If voters approve the amendment, the political commission would be replaced by the Ohio Redistricting Commission, consisting of 15 members, including five Republicans, five Democratic citizens and five independents.
The summary does not change the full text of the proposed redistricting reform or the actual effects of the amendment; it is merely a summary used to describe the amendment on the ballot.
The average of Ohio voter preferences over the past 10 years, including 2022, shows a 56-43 Republican-Democratic preference among Ohio voters, but Republicans control supermajorities in 67 of the 99 seats in the Ohio House of Representatives and 26 of the 33 seats in the Ohio Senate. Ohio voters were forced to vote in unconstitutionally redistricted districts in 2022 after Republicans on the Ohio Redistricting Commission ran out of time to submit constitutional maps and a divided federal court ruled that maps that were deemed redistricted by a bipartisan majority on the then-Ohio Supreme Court must be used.
Republican politicians on the Ohio Redistricting Commission have battled the court’s bipartisan majority for nearly two years over the 2021 and 2022 maps, with five Statehouse maps and two U.S. congressional district maps being thrown out as unconstitutional gerrymandering. The deciding vote in those cases, Republican Supreme Court Justice Maureen O’Connor, was forced into retirement due to age. She now leads the effort for the Citizens Not Politicians amendment.
One provision challenged by Citizens Not Politicians but allowed by the court states that the amendment “would repeal constitutional protections against gerrymandering approved by nearly three-quarters of Ohio’s electors in the 2015 and 2018 state elections and eliminate the long-standing ability of Ohioans to hold their representatives accountable for drawing fair electoral districts at the state legislative and congressional levels.”
Citizens Not Politicians attorneys argued that the mention of the vote difference and voting method was unnecessary, and the court found that the plaintiffs argued that the language was “tantamount to an argument against the adoption of the proposed amendment.”
However, the majority of judges found that “in a worst-case scenario” the inclusion of the vote difference and method could be “challenged on grounds of materiality” rather than “on grounds of accuracy”.
“The information is factually accurate, and its authors have not shown that it is likely to ‘mislead, deceive, or expose voters to fraud,’” the majority of the justices said in their ruling.
The court also allowed language added by state Sen. Theresa Gavarone during the board’s Aug. 16 meeting that states the amendment “would create a new, taxpayer-funded nominating commission charged with gerrymandering statewide and congressional district boundaries to favor the two largest political parties in the state of Ohio.”
The justices rejected arguments from Citizens Not Politicians that the language suggested to voters that the amendment “would require gerrymandering,” despite the fact that the amendment stated it would prohibit partisan gerrymandering.
The court found that “the fact that the proposed amendment proclaims a ‘prohibition on partisan gerrymandering’ … is of little assistance in determining whether the use of the word ‘gerrymandering’ in ballot text is improper.”
The court analyzed various definitions of “gerrymandering” in reaching its decision, finding that the amendment’s requirement that the state Capitol and congressional maps be drawn “is well within the meaning of the term ‘gerrymandering.’”
“Because the board’s use of the term ‘gerrymandering’ is consistent with dictionary definitions and the terms used by the United States Supreme Court, it does not mislead, deceive, or defraud voters,” the decision stated.
The court did not order any changes to the ballot title, although it was included in the changes requested by the Citizens, Not Politicians organization.
“We conclude that the secretary did not make an error in the title of the ballot,” the court wrote.
While all judges agreed with the changes, they were divided on how many changes should be made.
In his dissenting opinion, Justice Patrick Fischer said that “gerrymandering, albeit in a bipartisan manner, is absolutely ‘required by the proposed amendment’” and that the state constitution “would mandate” that the voices of independent and third-party voters be “removed from the world of Ohio politics.”
Judge Michael Donnelly agreed with the ruling ordering changes to the ballot wording, but he “strongly” disagreed “that those changes are even remotely sufficient to prevent the ballot wording as a whole from being misleading.”
He and Justice Melody Stewart joined Justice Jennifer Brunner in an opinion in which they agreed with the changes but said the majority opinion “reflects this court’s utter inability to conduct a fair review of the constitutionality of the election commission’s work.”
“We should demand a near-complete rewrite of what is probably the most astonishingly artificial language on a ballot that Ohio voters have ever seen,” Brunner wrote.
She added that the wording used on the ballot paper “is tantamount to virtually chewing food before voters have a chance to taste it themselves and decide whether they like it or not.”
Although the summary will appear on the ballot in the November general election, actual language of proposed amendment will be posted at polling stations.
The Ohio Secretary of State’s office said the election commission will meet to make the changes Wednesday morning.
Reactions
Citizens Not Politicians released a statement saying it disagreed with the “majority of the decision” but agreed with the court’s “overturning of the decision of politicians serving on the election board as violating the Ohio Constitution.”
Ohio Secretary of State and Elections Chairman Frank LaRose issued his own statement, calling the court’s decision “a huge victory for Ohio voters who deserve an honest explanation of the decision they were asked to make.”
Former Ohio Redistricting Commission co-chairman and state auditor Keith Faber said the court “approached the matter thoughtfully and made the right decision.”
Senate President Matt Huffman and Gov. Mike DeWine have publicly spoken out against the initiative.
Faber’s co-chair, Senate Minority Leader Nickie Antonio, said that while the decision “allows Ohioans to make more informed decisions by addressing some of the most deceptive language, other misleading and contentious language continues to emerge.”
