The Ohio Supreme Court is standing up to partisans on behalf of voters.
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When I was a law student, I got the chance to hear Justice William Brennan speak at NYU School of Law. To my surprise, the lion of the U.S. Supreme Court didn’t speak about Baker v. Carr or New York Times v. Sullivan or his other great decisions. He talked instead about state courts and state constitutions. They were, he said, underappreciated “guardians of individual rights.” It was the first flush of the conservative wave in federal courts, and Brennan, who had been a state supreme court justice himself, knew how much latent power and promise there was in our federalist system.

This week, we saw that insight play out in Ohio. The Ohio Supreme Court struck down a highly gerrymandered legislative map, for the fourth time in the past year. That’s no typo.

The first version of the map would have given Republicans likely supermajorities in both houses of the legislature with just 54 percent of the statewide vote. The court keeps striking down the maps; a politician-controlled commission keeps submitting barely-changed gerrymanders. For good measure, the Republicans now are trying to impeach the Ohio Supreme Court’s chief justice (also a Republican).

Yes, another frustrating tale of politics in 2022. But look closer: what’s significant here is that it is the state supreme court, not the U.S. Supreme Court, that’s standing up for a fair democracy.

Over the past decade, the federal government has abandoned its role in protecting voting rights. The U.S. Supreme Court eviscerated the Voting Rights Act in a series of rulings, most notoriously Shelby County in 2013. Then in 2019, in Rucho v. Common Cause, the Supreme Court said that partisan gerrymandering is bad, truly, but there is nothing the federal courts can do about it — indeed, the justices barred federal courts from even hearing such claims. Congress has the power to act, and tried to do so with the Freedom to Vote: John Lewis Voting Rights Act. We all know how that turned out.

The withdrawal of Uncle Sam has left a gaping void in the voting rights arena, and states have begun to fill it. Every state but one has a stronger explicit protection for the right to vote than the federal constitution does. State courts, many of which used to interpret their constitutional provisions on voting rights as being synonymous with whatever the Supreme Court says the federal constitution means, are also finding their voices. Courts in North Carolina, Arizona, Maryland, and New York have all recently struck down legislative maps for partisan gerrymandering.

Citizens themselves have passed initiatives to restore voting rights to formerly incarcerated people, create independent redistricting commissions, and ban gerrymandering. Just four years ago voters in Michigan, Colorado, Missouri, and Utah enacted redistricting reform.

Indeed, in Ohio it was a ballot measure that set the standards now being enforced by the court, in litigation brought by the Brennan Center and others.

The fight is far from over. State officials in Wisconsin, for example, stubbornly cling to gerrymandering to maintain their grip on power. And we don’t know how the Ohio story will end. Republicans have appealed to the federal courts to sideline the state supreme court, and the redistricting commission remains unrepentant.

Above all, there is simply no substitute for federal action to protect voting rights and strengthen democracy. The Freedom to Vote Act bars gerrymandering in Ohio and 49 other states. But if Congress cannot act, even with a majority in support, because of the filibuster, and federal courts will not act, then we have no choice but to press forward with other strategies. The states, their courts, and their constitutions offer a very promising avenue.

Democracy

The Promise of Voting Rights Restoration

In his contribution to the 2022 edition of the National Urban League’s State of Black America report, Sean Morales-Doyle discusses the landscape for the restoration of voting rights to those with past criminal convictions. “There has been tremendous progress on voting rights restoration in the last few years. And there is reason to hope that the progress will continue,” he writes. NATIONAL URBAN LEAGUE

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From Big Lies to Bad Laws

Two new Brennan Center resources address the impact of the Big Lie of a “stolen” 2020 presidential election, linking it to the wave of antidemocratic state legislation across the country. The first analysis

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examines lawsuits filed by the Trump campaign and allies to attempt to overturn the 2020 election, finding that many of the same false claims cited in these efforts later became the foundation for key pieces of anti-voter bills.

The second resource addresses election denial rhetoric, rounding up public comments made by sponsors and supporters of anti-voter legislation. It finds that, of the 13 most restrictive voting bills that became state law in 2021, 10 had chief sponsors who publicly questioned the results of the 2020 election. Read more

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Rapidly Shifting Politics in Judicial Elections

While the 2022 midterm elections will have the fewest competitive seats in history thanks to partisan gerrymandering, races to elect state supreme court judges — who wield immense power in redistricting — are heating up. Douglas Keith discusses the evolution of these elections, the unprecedented flow of money in support of judicial candidates, and the hot button issues driving this drastic shift. “These decisions will draw attention on not just the courts but on particular justices,” he said. "The current redistricting cycle may escalate what was already going to be a highly politicized cycle of judicial elections." BUSINESS INSIDER

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Keeping Redistricting Moving in New York

Earlier this month, a New York appeals court judge ordered the appointment of a neutral expert to start redrawing the state’s congressional district lines, pending appeal. The lower court had ruled that the Democratic-drawn maps were partisan gerrymanders in violation of the state constitution. Depending on resolution of the appeals, the neutral expert’s maps could be used before this year's elections. Praising the judge’s move as a “logical step,” Michael Li said: “Too often, map drawing gets put completely on hold and then by the time a case is decided, there isn’t enough time to redraw maps." NEW YORK TIMES

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News

Michael Waldman on his book, The Fight to Vote // WASHINGTON MONTHLY

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Madiba Dennie on the need for diversity in the judiciary // ASSOCIATED PRESS

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Michael German on the verdict in a DOJ “China Initiative” case // SCIENCE

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Michael Li on unusual redistricting and racial gerrymandering in Florida // TAMPA BAY TIMES

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Douglas Keith on record spending in judicial elections // REUTERS

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Peter Miller on the pervasiveness of partisan gerrymandering // BANGOR DAILY NEWS

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Faiza Patel on the FBI’s authority to monitor social media // ROLLING STONE

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Kelly Percival on inequities in the 2020 Census // YAHOO NEWS

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Wendy Weiser on risks to democracy in the name of “election integrity” // GUARDIAN

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