Ohio Advisory Opinions March 01, 2022: AGO 2022-004

Advisory Opinion Text

SYLLABUS: 2022-004

1. The commission, acting under Ohio Constitution Article XIX Section 3(B)(2), may enact a congressional map by a simple majority vote. See Article XI, Section 1(B)(1).

2. A map adopted pursuant to Ohio Constitution Article XIX Section 3(B)(2) is valid for the time period that the previous map was valid for before being found unconstitutional. This means that, for the current redistricting cycle, an adopted map would be valid for 4 years, as the map that was found unconstitutional was valid only for 4 years. See Article XIX, Section 1(C)(3)(e); Article XIX, Section 3(B)(2) ; Adams v. DeWine , 2022-Ohio-89, ¶¶ 15-22.

Honorable Robert Cupp

Speaker of the Ohio House of Representatives

Co-Chair, Ohio Redistricting Commission

77 South High Street, 14 Floor

Columbus, Ohio 43215

Dear Speaker Cupp:

You have requested an opinion regarding the Ohio Re-districting Commission’s adoption of congressional district maps pursuant to Ohio Constitution, Article XIX Section 3(B)(2). Specifically, you ask:

1. What votes are required for the Commission to adopt a congressional map: Can maps be adopted by a simple majority of members of the Commission, or are at least 2 votes from members of each political party required?

2. Is the map adopted effective for 4 years or 10 years, and is that dependent on whether at least 2 members of each political party vote for the map?

I address the questions below.

Background of the Congressional Redistricting Process in Article XIX

Article XIX of the Ohio Constitution, which the People of Ohio ratified in 2018, governs the process by which Ohio draws congressional districts. The process consists of three steps.

The first step is set out in Section 1(A) of Article IXI. It states that the General Assembly shall pass a map by the end of September in a year ending with the numeral one. The map may be passed only with an affirmative vote of three-fifths of the members of each house in the general assembly. Further, at least one-half of the members of the two dominant political parties in each house must support the map. If the General Assembly successfully passes a map under this section, the map remains in effect for ten years.

The second step is set out in Section 1(B), which applies if and only if the General Assembly fails to enact a map under Section 1(A). Under Section 1(B), the Ohio Re-districting Commission has until the end of October to enact a congressional map. A map will be deemed enacted only if it has support from at least 4 members of the Ohio Redistricting Commission, including at least 2 members from each of the two dominant political parties. Any map enacted under Section 1(B) remains in effect for ten years. (The Commission, at this second step, does not have authority to enact a 4-year map by a simple majority vote. Compare Article XI, Section 1(B)(3) with Article XI, Section 8(C)(1)(a).)

Before moving to the third step, it is important to highlight one important aspect of the Ohio Redistricting Commission’s powers. The Commission is created by Article XI of the constitution. And Article XI, Section 1(B)(1) states that, “unless otherwise specified in this article or in Article XIX of this constitution, a simple majority of the commission members shall be required for any action by the commission.” Section 1(B) does “otherwise specif[y].” But as this opinion will explain later, other sections governing the redistricting process do not.

Step three applies if and only if the Ohio Redistricting Commission fails to act. At this step, the General Assembly must adopt a map before the end of November. If the chosen map receives affirmative support from three-fifths of the members in each house, and an affirmative vote from at least one-third of the members in each of the two dominant parties, then the map remains in effect for ten years. If the map is instead enacted by a simply majority vote that does not satisfy these criterion, it remains in effect for just four years. Article XIX, §1(C).

General Assembly Passes Maps by a Simple Majority without 1/3 affirmative votes from each party, so the map was good for 4 years; Article XIX, Section 1(C)(3)(e)

This redistricting session, the Congressional map was passed by the General Assembly pursuant to Article XIX, Section 1(C). The General Assembly passed the map by a simple majority of the General Assembly, with no Democrats in either the House or the Senate voting for the map. Adams v. DeWine , 2022-Ohio-89, ¶ 21. As a result, the map, had it been upheld, would have remain in effect for just four years. Article XIX, Section 1(C)(3)(e); Adams v. DeWine , 2022-Ohio-89, ¶¶ 15-22.

Ohio Supreme Court Finding of Unconstitutionality and Adoption of a New Map Pursuant to Article XIX, Section 3(2)(B)

Article XIX, Section 3(A) gives the Ohio Supreme Court exclusive, original jurisdiction in all cases arising under Article XIX. Here, the Ohio Supreme Court found that the enacted map failed to satisfy the requirements in Article XIX, Section 1(C)(3)(a) and (b). See Adams v. DeWine , 2022-Ohio-89, ¶5.

When a map is rejected by the Ohio Supreme Court, the General Assembly has 30 days to remedy the defects. Article XIX, Section 3(B)(1). If the General Assembly fails to address the defects within the allotted time, Article XIX, Section 3(B)(2) applies. Section (B)(2) states in full:

If a new congressional district plan is not passed in accordance with division (B)(1) of this section and filed with the secretary of state in accordance with Section 16 of Article II of this constitution, the Ohio redistricting commission shall be reconstituted and reconvene and shall adopt a congressional district plan in accordance with the provisions of this constitution that are then valid, to be used until the next time for redistricting under this article in accordance with the provisions of this constitution that are then valid. The commission shall adopt that plan not later than the thirtieth day after the deadline described in division(B)(1) of this section. A congressional district plan adopted under this division shall remedy any legal defects in the previous plan identified by the court but shall include no other changes to the previous plan other than those made in order to remedy those defects . (Emphasis added).

Article XIX, Section 3(B)(2) does not specify whether the adoption of a map requires the affirmative vote of at least 2 members of each of the two dominant political parties. It also does not state whether or not the adopted map is for a period of 10 years or 4 years (or if a map passed by a simple majority is good for 4 years, while a map passed by at least 2 members of each dominant political party is good for 10 years). The only specific instruction is that the General Assembly cannot amend or alter the map beyond what is necessary to remedy the defects found by the Ohio Supreme Court. Id . Here, that means that the General Assembly may only address the map in relation to the Article XIX, Section 1(C)(3) requirements that the Ohio Supreme Court found not satisfied. See Article XIX, Section 1(C)(3)(a) and (b); see also See Adams v. DeWine , 2022-Ohio-89, ¶5.

You have asked several questions related to Article XIX, Section 3(B)(2)

What procedures govern the vote under Article XIX, Section 3(B)(2)? Is a bipartisan vote required?

You first ask what voting procedures govern the Commission’s adoption of a map pursuant to Article XIX, Section 3(B)(2). Specifically, you ask whether a simple majority vote is sufficient, or if a bipartisan vote with two members of each party voting “yes” is required.

Article XIX, Section 3(B)(2) states that the Commission “shall adopt a congressional district plan in accordance with the provisions of this constitution that are then valid[.]” Article XI, Section 1(B)(1) states that “unless otherwise specified in this article or in Article XIX of this constitution, a simple majority of the commission members shall be required for any action by the commission.”

These provisions indicate that, unless another procedure is specified in Article XIX, a simple majority vote is sufficient to adopt a map. Article XIX, Section 3(B)(2) does not explicitly contain any other voting procedure. Accordingly, the default procedure applies.

Before moving on, I will pause to explain why two provisions that might appear to require more than a simple majority vote do no such thing.

Begin with Article XI, which governs the adoption of state legislative maps. Under Article XI, if at least 2 members of each political party vote affirmative on a state legislative district map, that the map is valid for 10 years. Article XI, Section 1(B)(3). If only a simple majority of the Commission, without bipartisan support, votes for a map, the map is valid only for 4 years. Article XI, Section 8(C)(1)(a). Could that process be incorporated into Article XIX? I conclude that the answer is “no.” Nothing in Article XIX includes any such option. The procedures for adopting a state legislative map and a congressional map are significantly different and contained in different articles. Article XIX, Section 3(B)(2) should not be read as directing the Commission to follow a procedure in a different article of the Constitution when Article XIX explicitly adopted a different procedure.

Second, one might argue that Article XIX, Section 3(B)(2) incorporates and duplicates the procedure set forth in Article XIX, Section 1(B) that the Commission follows when originally adopting a map. Under Section 1(B), the Commission can approve a map only with 2 votes from members of each dominant political party, and the map is good for 10 years. But there is no basis for reading Section 1(B)’s requirements into Section 3(B): the provisions contain different language, and different language connotes different meaning. Moreover, this interpretation creates the distinct possibility that the Commission will be in perpetual deadlock and unable to pass a map. Ohio would be left without a congressional map. The language in Section 3(B)(2) states that the Commission “shall adopt” a map, and provides no back-up if the Commission does not adopt a map. This is in contrast to the redistricting procedure for the initial adoption of a map. Under the initial procedure for adopting a map, if the Commission fails to adopt a map, the General Assembly has a second chance to adopt a map. After a map is found unconstitutional, however, there is no such option. I do not believe Article XIX, Section 3(B)(2) can plausibly be read as allowing the Commission to be stuck in limbo without adopting a map. (Ultimately, the federal default of 15 statewide, at-large Congressional districts might take effect under this reading. See U.S. Constitution, Article I, Section 2). At least here, where the Constitution specifically provides for a different default procedure–a simple majority vote pursuant to Article XI, Section 1(B)(1)—I do not view Article XIX, Section 3(B)(2) as incorporating the procedure set forth in Article XIX, Section 1(B).

Because Article XIX, Section 3(B)(2) does not contain a specific voting procedure, and because it does not incorporate procedures from another provision, Article XI, Section 1(B)(1) applies. The Commission can adopt a map by a simple majority vote.

Time period that Maps Adopted Pursuant to Article XIX Section 3(B)(2) are Valid For

Having concluded how the Commission adopts a map pursuant to Article XIX, Section 3(B)(2), I now address whether the map is valid for 4 years or 10. I conclude that it is valid for 4 years.

Article XIX, Section 3(B)(2) states that a map adopted pursuant to it is valid “until the next time for redistrict-ing under this article.” The phrase “until the next time for redistricting under this article” has several potential readings. I conclude that the best reading is that the phrase sets different time periods for different maps.

One reading is that the “next time for redistricting” always means that the map is valid until the year ending in numeral one (e.g. 2031, 2041), which would align with the general decennial redistricting process. I do not believe this is the correct interpretation, however. Other than in Section 3, nowhere else in Article XIX is the phrase “the time for redistricting,” or any similar general phrase used. Instead, other provisions of Article XIX consistently use the phrase “shall remain effective until the next year ending in numeral one” when the map is to be effective until the beginning of the next decade. See Article XIX, Section 1(A), (B), (C)(2), (D), (E), (F)(2), and (F)(3)(e). When Article XIX intends that the map shall remain effective for a different time period than until the next year ending in numeral one, Article XIX uses different language. See Article XIX, Section 1(C)(3)(e) (a map is valid for two general elections). Article XIX, Section 3(B)(2)’s use of language other than “shall remain effective until the next year ending in numeral one” indicates that the map adopted pursuant to the section is not necessarily effective until the next year ending in numeral one.

This reading is further supported by looking at the ballot language and purpose of the new congressional re-districting amendment. The ballot language for the amendment states that the amendment would “[r]equire the General Assembly or the Ohio Redistricting Commission to adopt new congressional districts by a bipartisan vote for the [map] to be effective for the full 10-year period.” Certified Ballot Language to Pro-posed Issue 1, 2018 (available here: https://www.sos.state.oh.us/globalassets/ballot-board/2018/2018-02-20-ballotlanguage-issue1.pdf). Similarly, the official “argument for” the amendment states: “Voting Yes on Issue 1 will require significant bipartisan support to adopt new congressional districts for 10 years.” Argument For proposed Issue 1 (Prepared by Senators Matt Huffman and Vernon Sykes, and Representatives Kirk Schuring and Jack Cera) (available here: https://www.sos.state.oh.us/globalas-sets/ballotboard/2018/2018-02-20-argument for-issue1.pdf). Ballot language does not override the language of a constitutional provision. It is however, re-quired to be ‘“fair, honest, clear, and complete’ and ‘no essential part of the proposed amendment’ may be omitted.”. State ex rel. Cincinnati Action for Hous. Now v. Hamilton Cty Bd. of Elections, 164 Ohio St. 3d 509, 2021-Ohio-1038, 173 N.E.3d 1181, ¶¶ 7-8, quoting Markus v. Trumbull Cty. Bd. of Elections, 22 Ohio St.2d 197, 259 N.E.2d 501 (1970), paragraph four of the syllabus. Allowing a 10-year map to be adopted with-out bipartisan support would explicitly contradict this language. Moreover, this reading would also allow the majority party to game the system by originally passing an intentionally unconstitutional map. Because a 10-year map cannot initially be adopted without bipartisan support, but could be adopted later without bi-partisan support after a Court finding of unconstitutionality. Such a reading would incentivize a majority party to act unconstitutionally when first passing a map. Ambiguous constitutional provisions should not be interpreted in ways that incentivize government officials to act unconstitutionally.

Therefore, the phrase “next time for redistricting” as used in Article XIX, Section 3(B)(2) should not be read to always mean that a map is valid until the next year ending in numeral one.

Nor, however, does Article XIX, Section 3(B)(2) use the explicit language that the plan adopted shall be valid for two general elections after its adoptions. Compare. Article XIX, Section 1(C)(3)(e).

Because the phrase “next time for redistricting” does not refer to a specific time, a different interpretation should be used.

The time period the plan is valid for is best read as being the time period for which the invalidated map would have remained in effect had it not been held unconstitutional. In exercising its duties under Article XIX, Section 3(B)(2), the Commission is remedying “defects in the previous plan identified by the court” and “shall include no other changes to the previous plan other than those made in order to remedy those defects.” The Commission’s role at this point is not to adopt an entirely new map, but rather to remedy constitutional defects in the previous map. Because the previous map was adopted for a specified number of years, remedying the Constitutional defects should not change the number of years it was adopted for. This interpretation also eliminates the possibility of a map that was originally valid for only 4 years being adopted for 10 years without bipartisan support, which is a result in clear contradiction of the ballot language and purpose of the amendment.

Because the Congressional map that was struck down by the Supreme Court was passed by the General Assembly pursuant to Article XIX, Section 1(C) with only a simple majority, the map was only valid for two general elections. Article XIX, Section 1(C)(3)(e); Adams v. DeWine , 2022-Ohio-89, ¶¶ 15-22. Therefore, for this redistricting session, a map passed by the Commission pursuant to Article XIX, Section 3(B)(2) is good only for two general elections.

Conclusions

Therefore, I conclude that:

1. The commission, acting under Ohio Constitution Article XIX Section 3(B)(2), may enact a congressional map by a simple majority vote. See Article XI, Section 1(B)(1).

2. A map adopted pursuant to Ohio Constitution Article XIX Section 3(B)(2) is valid for the time period that the previous map was valid for before being found unconstitutional. This means that, for the current redistricting cycle, an adopted map would be valid for 4 years, as the map that was found unconstitutional was valid only for 4 years. See Article XIX, Section 1(C)(3)(e); Article XIX, Section 3(B)(2) ; Adams v. DeWine, 2022-Ohio-89, ¶¶ 15-22.

Respectfully,

DAVE YOST Ohio Attorney General