The American Civil Liberties Union is suing Ohio to strike down the state’s congressional map, saying it was intentionally drawn to so egregiously benefit Republicans that it violates the Constitution.
Since 2012, Republicans have consistently won the same 12 of Ohio’s 16 congressional seats, while winning between 51 and 59 percent of the state’s popular vote. The suit alleges that Republicans maintain this remarkable advantage because they controlled the redistricting process in 2011 and worked in secret to draw a map to guarantee just that outcome each year.
The suit was filed Wednesday in federal court on behalf of 16 voters in each of the state’s congressional districts, the Ohio chapter of the League of Women Voters and the A. Philip Randolph Institute, a labor and civil rights group.
The lawsuit underscores a growing confidence among voting rights groups over the last few years in bringing challenges to congressional plans that Republicans have benefited from since 2012. The Supreme Court has never said whether an electoral map can be so partisan that it violates the Constitution, but it is expected to rule in two cases that make that argument in June. A ruling setting constitutional limits on partisan gerrymandering could profoundly affect American politics by requiring lawmakers to draw districts that are more competitive.
Two more congressional elections are due to take place under Ohio’s current map before the next round of redistricting in 2021. Even though litigation can move very slowly, the ACLU hopes to have a new map in place for the 2020 congressional elections.
Alora Thomas, an attorney with the ACLU, said her organization felt encouraged to bring the suit after multiple rulings in lower courts blocking electoral maps in Wisconsin and North Carolina on partisan grounds. (Those rulings are currently paused while the Supreme Court considers appeals.) In January, the Pennsylvania Supreme Court struck down the state’s congressional maps as too partisan for the state Constitution. A challenge to Michigan’s congressional map on partisan grounds is also before a federal court.
“Because courts are really now open to taking a look at this issue, and it looks like they’re going the right way and finding partisan gerrymandering unconstitutional, the question becomes, ‘Well, where else is there a problem and is it something that needs to be addressed now?’” Thomas told HuffPost. “Ohio is one of the most gerrymandered states in the country.”
An analysis by the Brennan Center for Justice found that Ohio’s congressional map has some of the most severe partisan bias in the country and accounts for between two and three additional GOP seats in the current Congress.
Thomas said the ACLU didn’t want to wait until Ohio got a new congressional map in 2022, because Ohio residents have already spent nearly a decade voting under a map the group believes is unconstitutional. A fairer map in place before the next round of redistricting, Thomas said, could ensure that the map for the subsequent decade is also fairer. Ohio voters also recently approved a ballot initiative to change the way redistricting is done in the state, a move that advocates hope will rein in excessive partisan gerrymandering.
The suit argues that the Ohio map violates the First and 14th Amendments, as well as Article I of the Constitution. The map violates the First Amendment, the suit says, because it amounts to an effort to “skew electoral outcomes to freeze their advantage and insulate their majority from changes in voter preferences.” It violates the 14th Amendment, the ACLU says, because lawmakers drew the map intentionally to disfavor Democratic voters in the state without a legitimate reason to do so. The ACLU also argues that in drawing such a severely gerrymandered map, Ohio lawmakers exceeded the power the Constitution gives them to regulate elections.
The case will hinge significantly on what the Supreme Court decides by the end of June. During oral argument in two partisan gerrymandering cases this year, the court seemed willing to allow some amount of politics in redistricting, but appeared closely divided on whether it was possible to determine if partisan gerrymandering could go so far that it violates the Constitution. Justice Anthony Kennedy, who wrote in a 2004 case that such a standard might exist, is seen as the critical swing vote in the case, and advocates have offered a number of standards with the hope that he might find one he likes.
Ohio Gov. John Kasich (R), who signed the state’s congressional map into law in 2011, is named as a defendant in the suit. But Kasich has recently been an outspoken opponent of partisan gerrymandering, and was one of a number of Republican elected officials who urged the Supreme Court in October to step in and do something about gerrymandering.
In a brief filed with the Supreme Court, Kasich and other Republican officials took a position similar to what the ACLU is arguing in the Ohio case, saying that partisan gerrymanders are “repugnant to the Constitution” and violate the First and 14th Amendments.
UPDATE: 2:50 p.m. ― Ohio Secretary of State Jon Husted (R), one of the state officials named as a defendant in the suit, criticized the challenge.
“If the way the congressional lines were drawn was such an issue for the ACLU, A. Philip Randolph Institute and League of Women Voters, why did they wait six years to file a lawsuit challenging the maps?” Husted said Wednesday in a statement. “These groups should respect the will of Ohio’s voters who overwhelmingly approved a constitutional amendment earlier this month that established a new, bipartisan process for drawing congressional districts starting in 2021.”