COLUMBUS, Ohio—When Ohioans vote on a proposed overhaul of the state’s redistricting system starting next month, they’ll see most of a Republican-authored ballot summary that paints the proposal in a not-so-favorable light.
That’s thanks to an Ohio Supreme Court ruling on Monday evening upholding most of the Ohio Ballot Board’s description of the proposed amendment, which will appear on every general-election ballot.
Among other things, the court’s Republican majority let stand wording stating that a proposed new redistricting commission is “not elected by or subject to removal by the voters of the state” and would be “required to gerrymander” congressional and legislative districts.
The court’s 4-3, party line ruling, which was unsigned, did side with redistricting reform supporters and Democrats on two comparatively minor points, ordering the Ballot Board to rewrite language regarding judicial review and public participation. The Republican-controlled Ballot Board is set to meet on Wednesday morning to change those parts.
Backers of the proposed constitutional amendment — who are mostly Democrats but also include Republicans like ex-Chief Justice Maureen O’Connor — had asked the Supreme Court to throw out most of the ballot-summary language written by Secretary of State Frank LaRose, a Columbus Republican and a vocal critic of the redistricting proposal. Their lawsuit claimed that the summary “may be the most biased, inaccurate, deceptive, and unconstitutional ballot language ever adopted by the Ohio Ballot Board.”
LaRose, however, said in a statement that the Supreme Court’s decision was “a huge win for Ohio voters, who deserve an honest explanation of what they’re being asked to decide.” He said the language struck down by the court only required the Ballot Board to make “minor adjustments.”
Here’s a detailed explanation of what amendment backers challenged in the ballot language and the court’s logic on each of its rulings. Of the 10 sections in the ballot language, only sections 6 and 7 were not challenged.
The ballot summary title
What does the proposed amendment say? The proposed amendment itself has no formal overall title.
What does the ballot language say? The title of the ballot summary is “To create an appointed redistricting commission not elected by or subject to removal by the voters of the state.”
What did the legal challenge say? That the ballot summary title “flagrantly violate(s)” Ohio law, which requires the Ballot Board to create a title that “shall not be likely to create prejudice for or against the measure.” The lawsuit asked the court to, at least, remove the phrase “not elected by or subject to removal by the voters of the state.”
What did the Supreme Court say? “The ballot title tells the voters, in condensed form, what they are being asked to vote on, and nothing in it is factually inaccurate because Ohio voters do not get a vote in the process of selecting or removing members of the proposed redistricting commission,” the ruling stated.
Section One
What does the proposed amendment say? That it would repeal Ohio’s current redistricting process for legislative districts (passed by more than 71% of statewide voters in 2015) and congressional districts (passed by nearly 75% of voters in 2018)
What does the ballot language say? That the proposed amendment would “repeal constitutional protections against gerrymandering approved by nearly three-quarters of Ohio electors participating in the statewide elections of 2015 and 2018, and eliminate the longstanding ability of Ohio citizens to hold their representatives accountable for establishing fair state legislative and congressional districts.”
What did the legal challenge say? That it’s “patently inappropriate, irrelevant, and seemingly unprecedented” to mention how current law was created, that it is “misleading and prejudicial” to say the proposed amendment would repeal anti-gerrymandering protections, and that the part about Ohioans not being able to hold representatives accountable is “nonsense.”
What did the Supreme Court say? The court upheld all of this ballot-summary language. It ruled that the information about the current redistricting system “cannot be questioned on accuracy grounds,” that it’s “not forbidden persuasion” to state that the proposed amendment would repeal anti-gerrymandering protections, and that it’s “self-evidently true” to say that, by removing elected officials from the redistricting process, voters would no longer be able to express displeasure over redistricting maps by kicking them out of office at the next election.
Section Two
What does the proposed amendment say? Under the proposal, the current redistricting process – which is in the hands of state lawmakers and/or statewide elected officials – would be replaced by a 15-member redistricting commission, divided evenly among Republicans, Democrats, and independents. Six commission members would be picked at random from a pool of finalists selected by a bipartisan panel of retired judges (the panelists themselves would be chosen by Ohio Ballot Board members). Those six would then choose the other nine commissioners from the remaining finalists.
The redistricting commission would then have to draw congressional and legislative districts that favor either Democrats or Republicans, based on the average percentage of the vote each respective party’s statewide candidates received in recent elections. In other words, if recent Republican statewide candidates got 55% of the vote, on average, 55% of new congressional and legislative districts would have to have more Republicans than Democrats in them.
New commissioners would be chosen for each 10-year redistricting cycle.
What does the ballot language say? That the proposed amendment would “establish a new taxpayer-funded commission of appointees required to gerrymander the boundaries of state legislative and congressional districts to favor the two largest political parties in the state of Ohio.” It also states that “counties, townships and cities throughout Ohio can be split and divided across multiple districts, and preserving communities of interest will be secondary to the formula that is based on partisan outcomes.”
What did the legal challenge say? It points to “plain language” in the proposed amendment itself stating it would “ban partisan gerrymandering and prohibit the use of redistricting plans that favor one political party and disfavor another.” As for dividing political subdivisions, the challenge noted that Ohio’s current redistricting system also allows such splits and – unlike the proposed amendment – has no protection for “communities of interest.”
What did the Supreme Court say? The court’s majority upheld the ballot-language summary, concluding that the proposed amendment would require gerrymandering because it would require Republicans and Democrats to each be given an advantage in the same percentage of districts as the average percentage of the vote each party’s statewide candidates got in recent elections. The court cited dictionary definitions of the word “gerrymander” — which the ruling generally defined as “to draw district boundaries to give a political advantage to an identifiable group” — as well as a 1973 U.S. Supreme Court ruling that states could constitutionally pass a “bipartisan gerrymander” that gives one party or the other an overwhelming advantage in each district.
The court also said the description about splitting counties and cities is accurate, as the proposed amendment wouldn’t forbid local boundaries from being divided and that preserving “communities of interest” is only a secondary goal to drawing districts that favor one party or another.
Section Three
What does the proposed amendment say? That the new 15-member commission would be made up of five people affiliated with the Democratic Party, five affiliated with the Republican Party, and five political independents.
What does the ballot language say? That the proposed amendment would “require that a majority of the partisan commission members belong to the state’s two largest political parties.”
What did the legal challenge say? That the proposed amendment wouldn’t require any redistricting commissioner to “belong to” any particular political party – just that 10 of them would have to be “affiliated” with a party, which would be determined based on things like their voting record and campaign contributions. It also notes that no elected or appointed officials, candidates, political party officers and consultants, nor registered lobbyists — or their families – would be allowed to serve on the commission.
What did the Supreme Court say? The Ballot Board’s wording, it held, “is factually accurate and the subject is addressed by the proposed amendment. Therefore, it is not misleading.” As for the Ballot Board summary language not mentioning the restrictions on who can serve as a commissioner, the court held that was OK because the title of the proposed amendment itself states that the commission will be made up of people who are “not elected.”
Section Four
What does the proposed amendment say? That members of the new redistricting commission can only be removed by other commissioners – following a public notice, public hearing, and public comment period – for a handful of reasons, including not disclosing their political activity or political connections, “wanton and willful neglect of duty or gross misconduct or malfeasance in office,” inability to perform their duties, and “behavior involving moral turpitude or other acts that undermine the public’s trust in the commission and the redistricting process.”
What does the ballot language say? That the proposed amendment would “prevent a commission member from being removed, except by a vote of their fellow commission members, even for incapacity, willful neglect of duty or gross misconduct.”
What did the legal challenge say? “The only reason for this elliptical sentence construction is to mislead voters,” the lawsuit says of this part of the Ballot Board’s summary.
What did the Supreme Court say? “The ballot language is factually accurate and describes this procedure, albeit in its own words,” the ruling states.
Section Five
What does the proposed amendment say? That the Ohio Supreme Court would have “exclusive, original jurisdiction” over all legal challenges to redistricting maps, and that “no other challenges to an adopted final redistricting plan … may be brought in any court.”
What does the ballot language say? That the proposed amendment would “prohibit any citizen from filing a lawsuit challenging a redistricting plan in any court, except if the lawsuit challenges the proportionality standard applied by the commission, and then only before the Ohio Supreme Court.”
What did the legal challenge say? That the Ballot Board’s summary is inaccurate because lawsuits against redistricting maps could still be brought in federal court, and because legal challenges could also be filed regarding other things, such as whether a redistricting plan was drawn based on where particular incumbents or candidates live.
What did the Supreme Court say? The court sided with the Ballot Board’s use of the phrase “any court,” as that term came from the proposed amendment itself. However, the court agreed that the ballot summary language was wrong to state that lawsuits could only be filed over whether the percentage of districts that favor one party corresponds to their recent statewide candidates’ average percentage of the vote. The court ordered the Ballot Board to rewrite that part of the summary.
Section Eight
What does the proposed amendment say? Redistricting commissioners, staff, and consultants would be forbidden to communicate with “any outside person” (or vice versa) about the redistricting process or plans, other than during designated public meetings and via “official commission portals.”
What does the ballot summary language say? That the proposed amendment would “limit the right of Ohio citizens to freely express their opinions to members of the commission or to commission staff regarding the redistricting process or proposed redistricting plans.”
What did the legal challenge say? That the Ballot Board’s “baseless statement” is contradicted by requirements that the new redistricting commission would have to invite broad public participation throughout the state, including by holding several rounds of hearings and allowing public comments to be submitted online or in person. The restrictions on communications, the lawsuit states, are meant to increase transparency by ensuring that commissioners and power brokers don’t make secret deals behind the scenes.
What did the Supreme Court say? The court said that while the proposed amendment would limit Ohioans’ ability to communicate with redistricting commissioners – even suggesting that residents couldn’t approach them in public places to discuss redistricting or buy TV or radio ads to appeal to them – the Ballot Board’s summary language needs to be rewritten because it doesn’t mention what the proposed amendment’s guarantees are for public participation.
Section Nine
What does the proposed amendment say? If Ohio voters approve the proposal this fall, the new redistricting commission would have until Sept. 19, 2025 to approve new congressional and legislative districts. Those districts would be used until after the 2030 U.S. Census, when new 10-year maps would be drawn.
What does the ballot language say? That the proposed amendment would “require the commission to immediately create new legislative and congressional districts in 2025 to replace the most recent districts adopted by the citizens of Ohio through their elected representatives.”
What did the legal challenge say? The lawsuit argues that the Ballot Board’s language gives the false impression that Ohio’s current legislative and congressional districts were “adopted by the citizens of Ohio,” when they were actually approved by statewide leaders and legislators.
What did the Supreme Court say? That the language should stay, as Ohio citizens manifest their will through statewide leaders and legislators.
Section Ten
What does the proposed amendment say? That, if passed, the state must provide “adequate” amounts of money for the new redistricting commission and related entities to do their work and defend it in court. Specifically, the proposal would require state lawmakers to appropriate $7 million by Dec. 10 for the 2025 redistricting cycle – money that, among other things, would be used to pay each redistricting commissioner $125 per day of work, plus expenses. That overall appropriation amount and commissioner pay rate would increase in future redistricting cycles based on inflation.
What does the ballot language say? That the proposed amendment would “impose new taxpayer-funded costs on the State of Ohio to pay the commission members, the commission staff and appointed special masters, professionals, and private consultants that the commission is required to hire,” as well as “an unlimited amount for legal expenses.”
What did the legal challenge say? That the language is “grossly misleading and prejudicial,” given that the state already covers redistricting expenses and legal fees without fixed limits – including more than $1 million to defend redistricting maps during the past two years.
What did the Supreme Court say? That the ballot summary language is “factually accurate,” given that the proposed amendment would create several new costs, such as per diems for redistricting commissioners and hiring an executive director. The court also upheld the wording about taxpayers being on the hook for “unlimited” legal expenses, stating that the amendment would indeed require the state to pay for all such costs.
Jeremy Pelzer covers state politics and policy for Cleveland.com and The Plain Dealer.
