A lawsuit challenging Ohio’s congressional map as an unconstitutional partisan gerrymander can move forward, a federal court ruled Wednesday.
The decision from a three-judge panel is a preliminary victory for the American Civil Liberties Union, five civic groups and 17 Ohio Democratic voters who filed the lawsuit. More significantly, the decision is the first from any lower court after the Supreme Court punted on two major cases involving partisan gerrymandering in June. Allowing the case to move forward is a small encouraging early sign for gerrymandering opponents, signaling that the Supreme Court’s June decisions haven’t closed off the courts to hearing gerrymandering claims.
Republicans controlled Ohio’s redistricting process in 2011 and drew the state’s congressional map to their advantage. In each congressional election this decade, Republicans have won the same 12 of Ohio’s 16 U.S. House seats, even though President Barack Obama carried the state in 2012 and the GOP share of the statewide congressional vote has fluctuated between 51 and 59 percent. The Brennan Center for Justice estimates partisan gerrymandering in Ohio has yielded two to three additional seats for the GOP in Congress. The plaintiffs want to have the court strike down Ohio’s current congressional map and get a new one in place for the 2020 election.
In June, the Supreme Court unanimously declined to step in and set a limit on when partisan gerrymandering goes so far that it violates the U.S. Constitution. It sent a challenge to Wisconsin’s Assembly map back to a lower court for further review, saying that voters could only bring a partisan gerrymandering challenge to the specific district they live in, not an entire map.
But in a concurring opinion joined by three of the court’s more liberal justices in that case, called Gill v. Whitford, Justice Elena Kagan laid out a road map for how challenges to partisan gerrymanders could move forward in the future. She said individual voters could present alternative maps to show how they had been “packed” or “cracked” into certain districts. She also explained that voters, as well as groups like political parties, could challenge partisan gerrymanders under the theory that a map drawn to entrench political control infringes on their First Amendment right of association.
The court in the Ohio case Wednesday repeatedly pointed to Kagan’s opinion to help it articulate why the case should move forward. The panel noted that the civic groups and Ohio voters all claim that Ohio’s gerrymandered map harms them by making it more difficult for them to achieve their partisan goals.
Michael Li, senior counsel at the Democracy Program at the Brennan Center for Justice, said the court’s decision shows the legal battle over gerrymandering is very much alive.
“The Ohio decision shows there is a lot of meat on the bones in Gill and that the fight over partisan gerrymandering is far from done,” Li wrote in an email. ”The fact that the Ohio court led with the First Amendment claims may be an indication that it ― and possibly other courts ― will find the First Amendment framework more workable than trying to figure out whether your vote was diluted under the 14th Amendment.”
The five groups challenging Ohio’s congressional map are the state chapters of the A. Philip Randolph Institute and the League of Women Voters, as well as the College Democrats at the Ohio State University, the Northeast Ohio Young Black Democrats and the Hamilton County Young Democrats.