Ohio Gov. Mike DeWine speaks Jan. 21, 2022 in Newark, Ohio. (AP Photo/Paul Vernon, file)

Normally, a federal court will defer to a state supreme court’s interpretation of state law.

But these are not normal times. Instead, a federal court has just ordered Ohio to use electoral maps that everyone agrees are illegal under state law. 

The redistricting saga in Ohio has been complex and convoluted. In 2015, Ohio voters overwhelmingly passed a state constitutional amendment to increase bipartisanship among the membership of its redistricting commission and adopt new substantive standards to root out extreme partisan gerrymandering.

The design of the commission was flawed from the start, given that, instead of using an independent commission like in Michigan, Ohio’s version includes explicitly partisan actors such as the governor and the secretary of state. The Republican-dominated commission has proposed a series of state legislative maps that are brazen partisan gerrymanders. Even Republican Governor Mike DeWine acknowledged that the first set of maps for the Ohio General Assembly likely violated the state constitution—even though he voted in favor of them last September. 

Since this redistricting cycle began, the commission has adopted maps on a party line vote no fewer than four times. And each time, the Ohio Supreme Court, on a 4–3 vote (with Republican Chief Justice Maureen O’Connor joining three Democratic justices), has ruled the maps unlawful under the state constitution because of their partisan tilt. The maps, the court found, violated the simple command of the Ohio Constitution: “No general assembly district plan shall be drawn primarily to favor or disfavor a political party.” The remedy is for the commission to produce a map that does not enable the Republican Party to win more seats than its share of support in the state. 

But instead of calling for the commission to do its job and create a lawful map, last week a federal court intervened to impose an extraordinary remedy: Unless the commission passes a new, legal map by May 28, the state must use one of the discarded maps for the 2022 election. Essentially, the federal court required the state to use an unconstitutional map.

The federal court’s 2–1 ruling—with two judges appointed by President Donald Trump in the majority—expressed concern that, if the redistricting dispute continued, the state would not hold a primary for state legislative races, depriving Ohio voters of their constitutional right to vote. To remedy that concern, the court said it was choosing the best option it could: a map that the state’s election machinery had begun to implement before the Ohio Supreme Court ruled it unlawful. The court decided that the commission’s third map was the best option, even though the Ohio Supreme Court ruled that one—and the subsequent fourth map—was in violation of the state constitution’s command to avoid excessive partisanship. 

There was no reason for the federal court to step in here. The Ohio Supreme Court had ordered the commission to produce a new map by May 6, a deadline it could still meet. The idea that the Ohio Supreme Court or the commission would leave Ohio voters without a primary is pure speculation. The federal judges paid lip service to state’s rights, overreaching to impose a map that the state’s highest court determined violates the state constitution.

The federal court’s decision produces perverse incentives for the Republican members of the Ohio Redistricting Commission. They know that if they run out the clock, they can use a gerrymandered map they like. Why would they draw a lawful map now? This same cycle of judicial activism will likely repeat itself in 2024: Republicans will enact an illegal map, the Ohio Supreme Court will order them to produce a lawful one, and, eventually, a federal court can allow the state to use the unconstitutional map anyway. 

The dissent, in this case, agreed that the federal court should step in but thought the court should require the state to implement a different map produced by redistricting experts that is consistent with the Ohio Constitution. But that solution still presumes that the federal court has a role in this case. At this stage—with no true threat of a fully canceled election—it simply doesn’t. Although the state already had to delay the primary for state legislative races until August because of this redistricting impasse, there is no evidence that further delays are imminent. The dissent also failed to recognize that the Ohio Supreme Court had already ordered the commission to produce a lawful map by May 6, which is enough time for the August primary. 

The federal court’s decision is baffling on many levels. The concern that Ohio will not have a primary is based on conjecture, nothing more. And to fix that supposed problem, the court ordered the state to use an unlawful map. The decision defies the will of the voters, who passed a state constitutional amendment in 2015 to thwart gerrymandering and gamesmanship in redistricting—in the name of protecting the constitutional right to vote. But voters aren’t the ones protected here. Incumbent politicians are the actual beneficiaries of the federal courts’ overreach because they can run in districts that will help them win reelection.

The decision is appealable to the U.S. Supreme Court, but we know how that would likely go, given the current Court’s extreme deference to those in power. The federal courts in 2022 are no friends of everyday voters. Apparently, using an unconstitutional map is better than ordering the commission to produce a fair one or letting the state court manage this issue of state law. So much for federalism. For federal courts considering voting rights, once again, up is down. 

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Joshua A. Douglas is a law professor at the University of Kentucky J. David Rosenberg College of Law and the author of Vote for US: How to Take Back Our Elections and Change the Future of Voting. Find him at www.joshuaadouglas.com and follow him on Twitter @JoshuaADouglas.