This statement pertains to the ACLU’s challenge to Ohio’s Congressional map; we are also actively litigating Ohio’s legislative map, seeking reform for the upcoming primary. The timeline is entirely different for the legislative map because we were not required to restart the litigation from square one, but instead are only days away from having a new map.
Despite our four victories in the Ohio Supreme Court striking down gerrymandered maps, nobody is happy with where we find ourselves today.
In early 2021, when preparations began for the once-a-decade redistricting process, no one could have predicted the lengths to which partisan actors would go to circumvent and undermine the anti-gerrymandering reforms passed by over 70% of voters that are now embedded in the Ohio Constitution. Make no mistake, we have been deliberately forced down this path by Republican leaders in the General Assembly and on the Ohio Redistricting Commission who put their own interests before voters and the Ohio Constitution. They alone are responsible for the headache and heartache that we are collectively experiencing.
The tactics used by those who would rather create a constitutional crisis than fair districts are breathtaking. The Republicans have been stalling, making excuses, and passing unconstitutional maps since day one, knowing that time was on their side. Because they control the date of the primary, their strategy was to win through delays.
We won four victories over gerrymandering in the Ohio Supreme Court, fighting with everything we had, day in and day out, to win fair state legislative and congressional districts. The Republican map drawers responded with continued resistance to partisan fairness criteria, disregard of our testimony and the better maps we proffered, and defiance of Supreme Court orders even to the point of contempt proceedings. And as we approach the primary, they hold the voters hostage more firmly with each passing day, threatening elections without final districts or candidates.
This escalating crisis was manufactured for the purpose of running out the clock. To beat the clock allows the recalcitrant map-drawers to expose Ohio’s voter-focused reforms to potential interference and revision by a federal judiciary augmented by large numbers of anti-voter, conservative appointees. Let us not forget, the Commission fabricated an “impasse” following the invalidation of the second General Assembly map, and a federal lawsuit was filed by Republican activists in less than 24 hours. It seems obvious that inviting a federal takeover of state redistricting has been the intention of Republican mapmakers as soon as they realized that the Ohio Supreme Court insisted on holding them to the spirit and letter of our state constitution.
When the Ohio Supreme Court ruled on Friday, March 18, that it did not retain jurisdiction over our congressional case, we were dealt a very difficult choice: either start a new lawsuit at square one, at a point on the calendar that would likely incur intervention from federal courts; or else forgo a remedy in 2022 in order to preserve the pro-voter precedent that we had established in state court. To us, every election is sacred, and so our decision to pursue relief only after the 2022 election cycle was a difficult one to make. An honest evaluation of our current situation confirms it was the only prudent decision.
The Ohio Constitution sets forth a 60-day process following the invalidation of an enacted congressional plan by the Ohio Supreme Court. Given that timeline, unless the primary election is radically moved - months into the future - relief for elections starting in 2024 is the best that is possible. We have come to a (thus far) immovable point where we are literally out of time, and we must accept the reality of the situation and the electoral calendar now before us. If the date of the primary is sufficiently delayed, we could seek relief, but unless and until that happens, we cannot.
Together, our organizations have been in this fight for the better part of four years: we first challenged the previous decade’s congressional map in 2018. This was a challenge we won on the merits in front of a federal three-judge court – a victory, until the United States Supreme Court ruled in a 5-4 decision in June 2019, that partisan redistricting is a political question not reviewable by federal courts, mooting our case.
The sad reality is the federal judiciary has taken a sharp anti-voter turn in recent years. One look at the rulings being delivered at the appellate and US Supreme Court level confirms this. Even just today, SCOTUS struck down a Wisconsin state assembly district map that had been approved by the Wisconsin Supreme Court. The attacks on efforts to obtain fair districts by the federal bench are a big “Keep Out” sign for any person committed to ending gerrymandering. But the months-long delay that it would take for us to challenge the Congressional map and obtain a new one would guarantee that we end up exactly there.
We add that, under no circumstance would the ACLU ever file a complaint without the consent of its clients, and the LWVO honors its partners, members, and supporters. While we would prefer that all of us could stand together in this legal strategy, we affirm that voters are our priority, and we have not given up.
Last, let us be clear. This is not the end. We are not done. We will never be done until partisan gerrymandering is truly ended in Ohio, for good.
