Election Law @ Moritz

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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Opinion and Analysis

If not Issue 4, then what? Would opponents sign on to Arnold's approach?

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November 1, 2005

This piece originally appeared November 1, 2005 in the Dayton Daily News. It was also printed November 4, 2005 in the Cleveland Plain Dealer under the title "Issue 4 critics must offer a solution." Representative DeWine has since replied to this op-ed, and you can read it here.

Issue 4, the ballot measure that would change the way Ohio's legislative districts are drawn, is vulnerable to criticism. But its critics, who acknowledge that the current system is unacceptable, have not promised an alternative.

State Rep. Kevin DeWine, R-Fairborn, who is leading the opposition to Issue 4, admits the current system is flawed. Yet he remains silent on what reform he would propose instead.

No Ohioan should vote against Issue 4 unless DeWine and his Republican colleagues announce a specific alternative to fix the system and, further, pledge to submit their plan to the voters in 2006.

The legitimate gripe about Issue 4 is that it values "competitiveness" too highly in drawing legislative maps, at the expense of traditional districting goals (like keeping districts compact and preserving existing county and city lines). But the real disease afflicting Ohio's legislative maps is the purely partisan manipulation of boundaries, called "gerrymandering," which sacrifices both competitive races and traditional districting goals.

When one party controls the districting process, it can secure for itself an unfair advantage, so that it captures a larger share of seats in the General Assembly than it would have if the map were drawn without regard to party dominance. As explained in a recent report from TheRestofUs.org, this is precisely what has occurred in Ohio , both previously when Democrats controlled the process and now when Republicans do.

This partisan advantage becomes especially pernicious if it prevents the minority party from regaining majority status after an election in which voters want a change.

To illustrate, suppose that gerrymandering has given the party in power an extra five-seat edge: for example, a 57-42 margin in the Ohio House of Representatives, rather than 52-47. Assume that the minority party picks up four seats in the next election. Although the minority party should become the new majority, with a 51-48 split in its favor, instead it will remain out of power, on the short end of a 53-46 split, owing to the artificial five-seat advantage.

This result violates the first principle of democracy, which is majority rule. Yet it easily could happen. According to the recent report, the artificial partisan bump in Ohio is historically closer to eight seats, rather than five. Consequently, a middle-of-the-road electorate, wanting to shift legislative power narrowly from one party to the other, is deprived of this democratic prerogative.

It would not be difficult to cure this partisan cancer without the extra dose of competitiveness required by Issue 4. In fact, on the ballot in California is Gov. Arnold Schwarzenegger's nonpartisan districting proposal. Unlike Ohio 's Issue 4, the Schwarzenegger initiative (officially known as Proposition 77) would give a priority to traditional districting goals, especially keeping cities and counties intact.

DeWine and his Republican colleagues should promise to bring the Schwarzenegger proposal, or some close variation, to Ohio voters in 2006. Doing so would demonstrate that their opposition to Issue 4 is in good faith, rather than an effort to perpetuate an unfair partisan advantage.

A well-designed districting system would not require wide swings in public opinion to change which party controls the Legislature, in order to overcome a built-in advantage that the previous majority gets from gerrymandering. Right now, Republicans in Ohio benefit from that built-in bias, but not in California as Schwarzenegger's reform efforts - and the Democratic opposition there - so vividly demonstrate.

This built-in bias is wrong in either state, whichever party benefits. Ohio Republicans, therefore, should honorably follow the lead of their California counterpart and clearly commit themselves to nonpartisan districting.

Absent an unequivocal pledge of this kind, Ohioans should approve Issue 4 as their only guarantee of ending this unfair advantage.