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Supreme Court dissenting justices on redistricting mock Ohioans’ rights to judicial review

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From left, Ohio Supreme Court Justices Patrick Fischer, Sharron Kennedy, and Pat DeWine. Official photos.

The argument of the three Republican supreme court justices dissenting against the anti-gerrymandering opinion issued by the court 4-3 Wednesday appears to be: Republican politicians are allowed to rig the game in their favor against the wishes of Ohio voters and in violation of the Ohio Constitution, and the Ohio Supreme Court has no authority to stop them.

In the decision, the four-justice majority on the court ordered redrawing of Ohio House and Senate maps that were approved along partisan lines 5-2 in September by the Ohio Redistricting Commission, ruling the maps do not meet the voter-approved standards against partisan gerrymandering in the Ohio Constitution.

The majority has ordered new maps to be submitted within 10 days, and it has retained the authority to review those new maps as well. The filing deadline for partisan candidates in the 2022 election comes in three weeks, on Feb. 2.

In 2015, 71% of Ohio voters amended the state constitution for Statehouse redistricting reform demanding an end to partisan gerrymandering.

An average taken from 16 partisan statewide elections over the last 10 years show a 54-46 Republican to Democratic political split of Ohioans, directly mirroring the 1.9 million to 1.6 million Republican to Democratic registered voter split of Ohioans.

Nevertheless, in September, Ohio Republican politicians awarded themselves continued supermajorities, with a House breakdown of 62 seats to 37 Dems, and 23 to 10 in the Senate, according to their own figures. Dave’s Redistricting App projected a 65-seat GOP supermajority in the House.

This is gerrymandering. It’s cheating, and it poisons everything.

But three Republican Ohio Supreme Court justices would throw away the judiciary’s power to hold politicians responsible for following the Ohio Constitution and the voters’ demands to end gerrymandering.

“This court does not have license to demand by judicial fiat the adoption of a new General Assembly-district plan,” Justice Sharon Kennedy wrote in her dissent, joined by Justice Patrick DeWine, who refused to recuse himself from the case despite that his father, Ohio Gov. Mike DeWine, is a defendant as a member of the Ohio Redistricting Commission, and voted for the gerrymandered maps.

In casting his vote for the gerrymandered maps, Gov. DeWine said he wasn’t “judging” the maps one way or another, which he said is up for the Ohio Supreme Court to do. Now these three supreme court justices, including his son, say it’s not for them to decide.

If it’s not the governor’s responsibility to bring voters constitutional and fair maps when legislative leaders refuse, and if it’s not the court’s responsibility either, then the entire system of checks and balances in Ohio government would be broken.

Saying the Ohio Supreme Court “does not have license” to uphold the Ohio Constitution on such a fundamental question of democracy for our Republic, when the maps were created jointly by the two other branches of government, is an odd and absurd argument to come from some of the highest members of the state’s judicial branch.

Judges don’t often make the argument that they themselves are powerless over the legislative and executive branches.

Justice Patrick Fischer took that base absurdity one further in his separate dissent, claiming the majority opinion striking down the gerrymandered maps “undermines confidence in this court” and “the resulting lack of the citizens’ support will harm the judicial branch of Ohio’s government for generations.”

Is this a joke? What would undermine the courts more? Courts upholding the Ohio Constitution 71% of voters amended to try to stop gerrymandering? Or courts allowing continued gerrymandering every four years in perpetuity after 71% of voters amended the Ohio Constitution to try to stop it?

Fischer claimed if they don’t like the gerrymandering, voters could just vote the gerrymanderers out every four years. He seems blissfully unaware that’s impossible for voters in rigged districts to do, which is the entire point of gerrymandering: The voters can’t vote out the politicians who refuse to represent their interests because the politicians rigged the districts so they can’t be voted out.

Addressing Fischer’s prodigious nonsense, Justice Jennifer Brunner wrote, “Gerrymandering at its core prevents voters from voting on equal terms to alter or reform their government.”

In the majority opinion, Justice Melody Stewart said, “The suggestion that the solution to unconstitutional partisan gerrymandering is simply to vote out its perpetrators is disingenuous. Partisan gerrymandering entrenches the party in power.”

Chief Justice Maureen O’Connor was the swing vote in this decision, and her commitment on this fundamental issue to the ideals of the Republic should be applauded throughout Ohio.

Interestingly, in her concurring opinion, she pointed to the dysfunctional process of redistricting shown to the court and reminded voters they “should understand they have the power to again amend the Ohio Constitution to ensure that partisan politics is removed from the drawing of Ohio Senate and House districts that takes place every ten years. …

“In other states, voters have elected ballot measures that strip redistricting authority from state legislatures and partisan officeholders and place it instead with nonpartisan redistricting commissions. … While not free from their own vulnerabilities, independent redistricting commissions have become ‘the premier institutional solution to the problem of partisan gerrymandering’ because they increase the degree of separation between map-drawers and partisan politics.”

Ohio Republican politicians involved in the gerrymandering of Ohio’s districts have fully shown they have no inclination to cast away partisan politics and uphold their oaths to the constitution and the voters.

And now three Ohio Supreme Court justices have also shamefully abdicated their responsibility to the Ohio Constitution and the voters.

Either they don’t understand the court’s critical role to check partisan politicians who cheat voters with gerrymandering, or they don’t care and are themselves engaged in a partisan political power quest rather than constitutional jurisprudence.

So spare me the hysterics over undermining confidence; 40 years of gerrymandering culminating in this entire charade of partisan hackery over constitution has done plenty of that already.

But four statewide elected officials in Ohio finally did uphold the Ohio Constitution on this critical issue. That might be the beginning of building some of that confidence back.


David DeWitt has more than 15 years experience covering Ohio government, politics and policy, including education, health care, crime and courts, poverty, state and local government, business, labor, energy, environment, and social issues. He has worked for the National Journal, The New York Observer, The Athens NEWS, and Plunderbund.com. He holds a bachelor’s degree from Ohio University’s E.W. Scripps School of Journalism and is a board member of the E.W. Scripps Society of Alumni and Friends.

This commentary was republished from the Ohio Capital Journal under a Creative Commons license.

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