Ohio Turns Into a One-party Oligarchy: The Death of Democracy in the Buckeye State
Democracy is dead, and Ohio Republicans killed it. Ohio long stood as an outlier from traditional Republican states, generally adopting sensible public health policies, moderated political rhetoric relative to national Republicans, and some receptiveness to bipartisan reforms (i.e. redistricting) at the behest of direct democracy ballot initiatives. Yet these days are long gone, as Ohio Republican leaders engaged in a scorched earth policy commencing with their all but criminal actions during redistricting where they effectively ended the system of checks and balances. With their newfound power, Ohio finally caught up to other Republican states – such as Wisconsin and North Carolina – in their destruction of democratic institutions. The new system instituted by the Ohio GOP places all power in a gerrymandered legislature responsive only to the most extreme elements of their base. In turn, the lack of competition for legislative majorities leads to policies – from ending vaccine mandates to forced pregnancy for girls as young as 10 – in service to their primary base. Worse yet, while the Ohio legislature seeks outright dystopian policies through the destruction of democratic institutions, their leaders in the form of State Speaker Bob Cupp and Senate President Matt Huffman invest heavily in ending democracy across the states through advancing the “Independent State Legislature Theory” through the U.S. Supreme Court. Ohio in the coming months will act as a ground zero in the democratic backsliding and one-party oligarchical systems that are to come.
Ohio’s decline into a one-party oligarchy unsurprisingly starts with redistricting. However, it is the context and destruction of judicial power that separates the state from others. Following the abuses of the 2010 redistricting cycle where Ohio Republicans crafted maps in “bunkers” to make losing Congressional and legislative majorities impossible, approximately three-quarters of voters approved a ballot initiative to reform the redistricting process where failure to adhere to legal constraints and bipartisanship would result in 4-year maps and/or be struck down by the Ohio Supreme Court. Therefore, the abuses of the 2010 cycle brought about the wrath of voters and the attention of the judiciary. Constitutional requirements included bans on assembly plans that unduly favors or disfavors a political party or its incumbents, in addition to bans on splitting municipal boundaries. If the legislature failed to pass a bipartisan map, a Commission consisting of members including the governor, state speaker, senate president, secretary of state, state auditor, and minority party legislative leaders would get a chance to write bipartisan maps, with a failure to do so resulting in 4-year as opposed to 10-year maps. All of the above would take place in public, with information necessary for the public to judge the maps necessitated by law to be released publicly. While the constitutional amendment perhaps did not engage in the best efforts by states such as Michigan in outright preventing politicians from redistricting, it was a step that imposed hypothetical consequences and created the type of language that could permit a court to strike down maps on the basis of the state’s constitution.
The Ohio Republican Party first demonstrated their contempt and power over the people in their complete refusal to comply with any of the standards set up by the Constitutional initiative. Republicans on the Commission refused to reveal any of the public details regarding their maps, only releasing “grainy PDF images” where partisanship or violation of municipal boundaries could in no way be ascertained. The Commission likewise violated the mandated 24 hour advance notice. The public eventually uncovered why the Republican Commissioners hid these maps back in late 2021: the Congressional and legislative maps earned an “F for partisan fairness and a C for preserving geographic areas of interest,” with eventual expert testimony revealing the maps to be even worse than the 2011 maps in preventing responsiveness to the public. As I noted in an earlier discussion on the proposed maps, “The Princeton Gerrymandering Project simulated 1 million potential maps and found that while neutral maps would be expected to elect between six and eight Democrats out of 15 districts, the proposed map would result in only three. These outcomes arise in a state where 53% of voters sided with Trump in 2020.” While the Republican led Commission claimed that these maps were the best that could be made within time constraints, they ignored maps simultaneously proposed by Democratic Commissioners and the public at large that achieved all neutral criteria better than the Republican crafted ones, while still granting a modest Republican advantage, reflective of their marginal numeric lead within the state. All in all, the end product demonstrated a complete lack of respect for what the voters sought in their 2018 Constitutional amendment.
The Ohio Republican led Commission next defanged the State Supreme Court to the point where it no longer acts as a check at all on the other two branches. Ohio Supreme Court Justice Pat DeWine refused to recuse himself from the litigation that included his father – Governor Mike DeWine – as a defendant. The conflict of interest arose as Ohio already deals with high-profile corruption and bribery scandals related to legislative leaders and perceptions of a pay-to-win Supreme Court arising from reports that Ohio’s justices were found to rule in favor of contributors on average 70 percent of the time. Following the blatant law-breaking mentioned above, the Court ruled against the Commission as engaging in a partisan gerrymander – four times – for the Congressional and legislative maps.
The problem that arose is two-fold. First, the state’s constitution is built such that the Commission is technically the backup mechanism in the event that there is a failure to pass a map. There is no contingency should the backup Commission engage in a partisan gerrymander so severe that it violates the Constitution. Therefore, the Republican led Commission passed effectively the same maps four times, without any Democratic or public input. In March, the Republican Commission even went so far as to hire nationally recognized independent experts to redistrict with a rate of $450 an hour, only to completely ignore their plan and adopt one drawn in secret by Republican staffers that remained identical to the one that the court already rejected.
Second, the Ohio Supreme Court refuses to engage in more punitive measures, potentially due to fear of legislative backlash. The Ohio legislature already threatened to impeach Justice O’Connor – who provided the decisive vote in the 4-3 rulings – for siding against the GOP. Justice O’Connor for these or related reasons went on record stating that she refuses to hold the Commission in contempt for their repeated violations. Without any personal cost to themselves, the Commission can therefore pass the same map over-and-over again without consequence.
The ultimate result of the Commission’s bad-faith effort is the destruction of the nearly 60-year old precedent that courts redistrict in place of the legislature – or similar redistricting body – when they repeatedly pass technically flawed maps and miss key deadlines. Whenever a redistricting body failed to pass a map that adhered to national and state criteria for redistricting, this left the state with its old set of maps in violation of population equality. Since 1964, this meant a state or federal court redistricted in place of the legislature in order to ensure maps technically adhere to the basic set of standards in time for the primary candidate filing deadline. This post-1964 practice is why courts redistricted approximately 20 percent of all Congressional and legislative maps. However, because the Commission ran out the clock, and the Court could/would not redistrict in their place, a federal court implemented the maps ruled unconstitutional rather than take away the legislature’s authority. This is part of a trend starting in February of 2022 where the U.S. Supreme Court overturned the precedent set in 1964 and allowed Alabama’s gerrymander to remain in place in an unsigned, 6-3 decision. Therefore, the Ohio Republican leadership managed to violate the law, ignore the state Supreme Court, and get away with maps ruled as unconstitutional by taking advantage of national partisan allies silently undoing the precedent that allowed for even basic accountability in redistricting.
Unfortunately, the usurpation of unaccountable Republican legislative power likely won’t end at Ohio’s borders. State Senate President Matt Huffman and State Speaker Bob Cupp employed a lawyer named Phillip Strach, who justified their behavior on the grounds of “Independent State Legislature Theory” (ISLT). The proposed legal theory starts with an ahistorical reading of Article 1, Section 4 of the U.S. Constitution technically states that, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations.” ISLT adherents argue that since the word “legislature” is used, it means legislatures are not bound by other branches of government or even their state constitutions regarding election matters or the appointment of presidential electors. Advocates seek to use ISLT as a means to allow the legislature to nullify popular elections that do not meet their desires, including the plan advocated by former President Trump for legislatures to appoint new electors in direct conflict with the will of voters. To date, all litigation on the matter treats the term “Legislature” as meaning the state’s lawmaking process, which includes the state constitution and judiciary. The ISLT interpretation arose following recent publications by Derek Muller in 2016 and Michael Morley in 2021, who built upon an aside by Justice William Rhenquist in his Bush v Gore (2000) opinion. National conservatives, such as Real Clear Publisher David DesRosiers, sponsor such interpretations in popular outlets and work with lawyers such as Huffman and Cupp’s Phillip Strach to advance ISLT in state and national level litigation and associated amicus briefs. The U.S. Supreme Court’s conservative majority announced on June 30th that it would hear a case on the merits of ISLT, Moore v Harper. Notably, Phillip Strach is one of the lawyers on the case siding for ISLT in his effort to secure a Republican gerrymandering in North Carolina. Far from an isolated incident, Matt Huffman and Bob Cupp work with national level actors to ensure that all legislatures are equally unaccountable to the public. Worst case scenario, even presidential elections would be determined not by popular votes within states, but by the partisan whims of state legislatures.
The consequences of the destruction of democratic accountability within Ohio are unfortunately already apparent. Scholars Alex Keena, Michael Latner, Anthony McGann, and Charles Smith recently published work that found states with the worst gerrymandering likewise adopted the most destructive policies. Their work primarily focused on public health measures, and found a direct connection between extreme gerrymandering and the lack of anti-COVID measures such as masking, vaccine provision, or other basic measures necessary for public health. Ohio’s now unaccountable Republican legislature used their power to advance legislation to empower itself to vote down all public health measures implemented by the state’s health department. State Speaker Cupp himself voted to approve the legislation that would end vaccine mandates altogether in the state, despite the role of public health initiatives in adding 25 of the 30 years of gained life expectancy since 1900. Likewise, Republicans such as Governor Mike DeWine face no pressure or need to comment on their unpopular six week abortion ban, which recently forced a raped 10-year old to seek an abortion in neighboring Indiana. Not only do Ohio Republican office holders not respond to the popular will, they actively enact laws that destroy a century’s worth of progress.
What started out as a typical fight over gerrymandering now ends in the death of democracy in Ohio, and possibly the nation at large. It is important to stress that while it is normal for politicians to seek partisan gain, it is the complete destruction of checks and balances and electoral accountability altogether that distinguishes the Ohio GOP from the past or current Democratic Party efforts in states such as Illinois or New York. As Keena and colleagues noted in their book, Republican gerrymanders well outpaced any comparable Democratic gerrymanders in their extremity of partisan bias back in the 2010 cycle. Ohio’s Republicans somehow managed to top their prior efforts, all the while usurping all power from the courts and Constitution, and ensuring that their legislative seats and majority cannot be contested. Their efforts to advance the Independent State Legislature Theory to justify their lack of accountability to the federal courts might likewise end our democratic-republic altogether. What Ohio now has to offer via their efforts starting in gerrymandering is a one-party oligarchy and the reversal of all public goods advanced since 1900. As goes Ohio, so goes the nation.
