Ohio just had its weird, technically illegal special primary election on Aug. 2, and the turnout was as bad as predicted.
The special primary's low turnout likely is due in part to the confusing mechanics surrounding the redistricting controversy. The state shelled out millions to hold the election, but races still were decided by tiny ripples of voters in districts the Ohio Supreme Court had repeatedly declared invalid.
While the court has made it clear on multiple occasions that Republicans aren’t playing fair at the expense of Ohio voters, it has not held the state’s redistricting commission in contempt. It's being debated if the court has the right to do that, but a U.S. Supreme Court case slated for the fall session could make those parameters crystal clear and Republican control ironclad.
"If the U.S. Supreme Court heads down the path of state legislative supremacy, there’s no getting the genie back in the bottle," David Niven, a University of Cincinnati political science professor who researches gerrymandering, tells CityBeat.
Moore v. Harper
This fall, SCOTUS will consider Moore v. Harper, which explores the power of a state’s judicial branch to nullify the regulations governing the authority of the legislature to determine the “time, place and manner” of congressional elections.
Translation: If the state supreme court can clearly see the election is unfair – the way Ohio is using voting maps that have been drawn to give a political party or person an advantage – the court can tell the politicians to make things more equal before election day. Moore v. Harper could squash that option.
Niven, who has testified as an expert witness in gerrymandering court cases, says the decision could cement power for Republicans in Ohio.
“If you move to a position where the legislature has total authority over the election process, and you’re already electing a legislature skewed wildly by an unfair map, you’re essentially saying the schoolyard bully will be in charge of the school,” Niven says.
New SCOTUS, potential new rulings
This wouldn’t be the first time SCOTUS has heard a case about independent redistricting commissions, Niven says.
“Republicans in Arizona said nobody can draw maps except the legislature [and] the independent commission is illegitimate. That got to the U.S. Supreme Court, who said the people can delegate the power to themselves, to an independent commission. So they rejected it," Nivan says. "So what we’re talking about in the span of a few years is the makeup of the Supreme Court changing enough to not just overturn a case, but overturn a constitutional principle that is literally as old as the country."
The independent state legislature doctrine, which is cited in Moore v. Harper, is an old theory that can be drawn back to the U.S. Constitution. The theory is used to claim that state legislatures are the most powerful body in the state and cannot be directed by the state's court or governor. This interpretation hasn't been popular — it's been rejected by courts for hundreds of years. But SCOTUS has reversed other laws that had long been settled – like Roe v. Wade – and the current Republican-dominated U.S. Supreme Court might be more friendly to the theory.
Ohio's one shot at fairness
The attempt at an independent commission to draw new, fair district maps was almost successful in Ohio earlier this year when the Republican-dominated commission tasked two people to do the job. The map-makers were Dr. Douglas Johnson, as proposed by the GOP, and Dr. Michael McDonald, as proposed by the Democrats.
Johnson and McDonald were working until the deadline set by the Ohio Supreme Court in March when Ohio Senate President Matt Huffman swooped in to kill their maps, saying the men were running out of time. The committee instead submitted previously-rejected maps with a couple of slight changes. The Ohio Supreme Court then rejected the barely-altered maps.
“There are states where independent commissions have worked, like Michigan. They put on their independent commission an equal number of Democrats and Republicans and a number of independents, so no party controls it," Nivan says. "In Ohio, we did the exact opposite of that.”
Niven says the ongoing redistricting drama could give voters an appetite to approve a totally independent redistricting commission if it were to appear on a ballot, blunting the power of the legislature.
“The way forward is a ballot question. There’s no practical way to get legislative action because it would require the people in power who are advantaged by the system we have to give up power,” Niven says. “The court has vast power to find the districts illegitimate, but no specific direct power to fix the problem. If you put a question on the ballot asking voters if they want real people, not professional politicians to draw their districts, the vast majority do.”