Declassifying “the Bunker”
November 12, 2018
By: Emmalyn McCarthy
Congressional district boundaries are the latest dispute in a string of voting-related cases in the state of Ohio. In May, a lawsuit was filed in federal district court by the Ohio League of Women Voters, Ohio’s chapter of the A. Philip Randolph Initiative, and one democratic voter from each of Ohio’s sixteen congressional districts. The suit pertains to congressional district lines drawn by a Republican-controlled process in 2011 which took place in a closed off hotel room called “the bunker.” Map drawers created a twelve to four, Republican-favored districting scheme, splitting up many counties to create a twelve district Republican voting majority.
Plaintiffs allege a constitutional burden to Democratic party voters under the partisan gerrymander as it currently stands in all sixteen of Ohio’s congressional districts. These claims include: (1) a First Amendment violation of individuals’ right to associate for the “advancement of political beliefs, expression of political views, and participation in the political process,” (2) a violation of First and Fourteenth Amendment rights to cast a meaningful vote, and (3) a violation of Fourteenth Amendment right to equal protection under the law. There is also a claim that the partisan gerrymander violates the powers granted to states under Article I of the Constitution.
On their face, the districts certainly look to be in violation of traditional districting criteria. Many of the districts are of irregular shape, not contiguous, and many Ohio counties are split, including those in urban areas which hold the largest majority of minority voters. Although the Supreme Court ultimately punted in Whitford, (a case where a district court struck down Wisconsin’s districting scheme as a partisan gerrymander) on standing grounds, the framework articulated by the district court: (1) did the legislature have a discriminatory intent or purpose in drawing district lines, (2) does the map have a discriminatory effect, and (3) are there legitimate reasons, like natural political geography, that create a political skew, could be used in the case at hand to bolster the plaintiffs arguments. It would seem the line drawers did have a discriminatory intent in that they tried to waste as many Democratic votes as possible by placing Democrats in four districts, splitting major population centers to do the job. By finessing the lines of the districts around large population centers, the line drawers created a discriminatory effect by making it more difficult for minority party voters to elect the candidates of their choice outside of the four districts created for them.
Additionally, under a Common Cause v. Rucho framework, the plaintiffs could also use a vote dilution argument, since a plaintiff from each of the sixteen districts is named. This vote dilution argument would purport that other constitutional rights are merely illusory if the right to vote is denied and the majority party is insulated via racial gerrymandering. Since Republicans under the current plan are so firmly entrenched in their districts, votes of Democrats are being stifled by their inability to cast a meaningful ballot.
However, while the plaintiffs have strong arguments, there are a number of hurdles to overcome. First, the suit has been challenged by defendants as no longer having standing due to the Supreme Court’s recent decisions in similar cases in Wisconsin and Maryland. However, a three-judge panel decided the suit could continue onto the merits, meaning this hurdle was cleared. Second is the seeming delay in the plaintiffs filing suit to begin with. The congressional districts as currently drawn have been in effect since 2012. There is no articulated reason why the plaintiffs waited until six years later to file a suit contesting the drawing of the lines. Third, and perhaps the most open option for a court not to weigh in on the issue, is the fact that a constitutional amendment was recently approved by Ohio voters regarding the drawing of the next congressional districts in 2020. Instead of leaving line drawing to whomever is in power, the districts will be re-drawn by a bipartisan commission in 2021. With midterm elections quickly approaching and a ruling on the merits yet to occur, the question is whether litigation will be concluded in time for a redraw to have any real effect on election in