Will this Ohio judge's retirement spell the end of fair elections in the state?

  • In Politics
  • 2023-01-26 11:00:07Z
  • By The Guardian

For the last year, Maureen O'Connor has essentially been the only thing blocking Republicans from cementing their control over the state legislature and congressional delegation. A few weeks ago, she retired from her job as chief justice of the Ohio supreme court (Ohio requires judges to retire when they turn 70), decreasing the likelihood Ohioans will get a fair electoral map anytime in the future.

In seven separate rulings last year, O'Connor - a registered Republican - joined Democrats and served as the decisive swing vote blocking Ohio Republicans from enacting maps they had severely distorted to their benefit. Each time the supreme court struck down the maps, Republicans came back with a plan that was just slightly more favorable to Democrats. None passed the court's muster.

The showdown between O'Connor and state legislative leaders was one of the most significant battles over redistricting in America. It revealed a brazen scheme by state lawmakers to ignore voter-approved measures to limit severe partisan gerrymandering. And it underscored the consequential role state courts can play in policing gerrymandering - which the US supreme court could eliminate entirely in an upcoming case.

Ultimately, however, Republicans in the state legislature won the standoff simply by running out the clock. Ohio had to have a map in place for last year's elections and implemented gerrymandered districts when there was no alternative (unlike some other states the Ohio supreme court is not allowed to draw a map).

"I was kind of taken aback that they were doing what they were doing, what they were presenting," O'Connor said in an interview earlier this month, just a few weeks into retirement. "And [then it] became abundantly clear that they were not gonna do it."

She described the current redistricting process as a "self-perpetuating control mechanism for one party".

"That's all it is," she said. "If you get the districts drawn in a way so that you are going to have a supermajority in the legislature then you are going to be able to rule Ohio through that lens."

"Then when the elections are happening with the use of those maps, it's gonna keep going. The same people are gonna get elected and they're gonna have the same agendas and they're gonna have the same path going forward."

In 2022, Ohio voters elected their representatives to the state legislature and congress under an "unconstitutional map", O'Connor said.

The state constitution requires that the state legislature and congressional delegation reflect the partisan makeup of Ohio over the last decade, which is about 54% Republican and 46% Democratic. But when Republicans dragged their feet in coming up with a compliant plan, courts let them use unconstitutional ones in their place for 2022. As a result, they maintained a supermajority in the state legislature and won 10 of the state's 15 congressional seats.

O'Connor acknowledged an unsettling truth about gerrymandering - there aren't really any negative consequences for anyone who does it.

"Nobody in Washington is saying 'oh you're not appropriately elected' that sort of thing. I mean … people moved on," she said. "Same thing with the house legislature. General assembly. Nobody's saying 'oh you're illegitimate so you can't vote on this.' Or we're not gonna obey your laws. Or you can't operate. They're not saying that."

Now, O'Connor, the last barrier to the gerrymandered maps, is gone from the court. The new court, where Republicans still have a 4-3 majority, may be more sympathetic and likely to approve a GOP gerrymander, further cementing Republican control in the state.

An Ohio voter fills out a manual ballot during the midterm elections.
An Ohio voter fills out a manual ballot during the midterm elections.  

But the role that O'Connor and the Ohio supreme court played in thwarting redistricting shows how state courts can check state lawmakers who try and gerrymander. However, a pending case at the US supreme court, Moore v Harper, could upend that. In that case, lawyers for the North Carolina legislature argue that the US constitution does not allow state courts to strike down congressional district maps or have any say in federal elections.

O'Connor said she found it "troubling" that conservative lawyers who believe in originalism - interpreting the US constitution through its original public meaning - would embrace such an idea. There is little historical evidence to back up the theory behind the case.

"I think that it is an overreach by the legislature and I think that it tosses the whole foundation of checks and balances, which is what our founding fathers wanted, that's why they created the three branches of government," she said.

As O'Connor dug in against Republican efforts to gerrymander last year, there was some chatter among GOP lawmakers about whether she should be impeached. O'Connor never took it very seriously. "It wasn't going to go anywhere - political drama," she said. " I don't even know who the legislators are that put that forth."

But she also bristles at the idea of being lumped in with Republicans both in her state and across the country. "Let's stop right there. I'm a registered Republican. That doesn't mean it's my party," she said. "You know. There's a lot of different types of Republicans. The direction of the Republican party both statewide and national is by no stretch my party."

The first time the Ohio supreme court struck down the state's legislative maps, a little over a year ago, O'Connor wrote a separate concurring opinion suggesting Ohio voters take up a constitutional amendment that would create an independent redistricting commission that stripped politicians of their ability to draw districts entirely. It was a brief, but striking, opinion - a plea to the voters of Ohio to do more to stop gerrymandering.

"It was the truth. It was necessary. That's the only solution," she said of her opinion.

Now, in retirement, O'Connor has made it clear that she plans to push for a new constitutional amendment to create a more independent process.

"Outside when people ask me what am I gonna be doing in retirement and I said well eventually I'm going to be with the people who are exploring constitutional amendments … that are going to be fair."

"It is something that will be on the ballot again. A constitutional amendment. God willing," she said.

But asked whether she thinks Ohioans will ever get political maps that reflect the composition of the state, O'Connor said "I don't know. I really don't know the answer to that."


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