Gerrymandering Our Courts

Gerrymandering, drawing districts to contain a majority of voters who reliably vote for one party and concentrating voters who tend to vote for the other party into just a few districts, has served Ohio Republicans very well. While donald trump[1] won 54% of the vote in Ohio in 2020, Republicans hold 79% of the seats in the Ohio Senate, 67% of the seats in the Ohio House, and 67% of Ohio’s seats in the U.S. House of Representatives. Gerrymandering has been such a successful force multiplier for Republicans that they are planning to extend it to another branch of government.

In Ohio, we have three basic levels of courts. The first level, where cases are filed and tried, consists of the Common Pleas Courts, one per county, which has several divisions: general, probate, juvenile, and domestic relations. Some Ohio counties also have municipal or county courts which may cover all or only a part of a county and in which only certain types of cases may be filed.

The second level of Ohio courts are the courts of appeals. When a party believes that a first level court made legal errors in their case, that party has a right to have their case reviewed by a court of appeals.  Ohio has twelve courts of appeals which hear appeals from first level courts in the counties in their district.

The geographic sizes of the Court of Appeals districts are not equal. For example, the Ohio Third District Court of Appeals hears cases from seventeen counties in western Ohio. Clermont County is in the Twelfth District along with seven other counties. The Courts of Appeals covering Ohio’s three largest counties each have a district consisting of only one county:  the Eighth District covers only Cuyahoga County (Cleveland), the Tenth District covers only Franklin County (Columbus), and the First District covers only Hamilton County.

At the top of the Ohio judicial system is the Ohio Supreme Court. The Supreme Court may hear cases from anywhere in Ohio. There are a few types of cases which may be filed initially in the Supreme Court, but most of its work is on appeals from decisions in lower courts.

With a few exceptions, no one has a right to appeal to the Ohio Supreme Court. Rather, litigants file petitions asking the Supreme Court to hear their appeals. The Supreme Court may grant a petition and hear the appeal. Much more often, the Supreme Court refuses to hear these appeals. The last numbers I saw showed that the Ohio Supreme Court took only about four percent of the cases which parties asked the Court to decide.

Since the Ohio Supreme Court decides very few of the cases brought to it, the Ohio courts of appeals are the courts of last resort for most cases. That also means that a substantial part of Ohio law is decided by the Court of Appeals. The Court of Appeals judges, like all judges in Ohio, are elected. The Court of Appeals judges are elected by the voters in the county or counties in that appellate court district.

When I started practicing law in Ohio in the 1980s, all six of the judges on the First District Court of Appeals, covering Hamilton County, were Republicans. In recent years Hamilton County has gone from solid red to blue. Most elected county officials are now Democrats. A majority of the judges on the First District Court of Appeals are now Democrats. Interestingly, and unlike their Republican predecessors, none of the Democrats now on the First District Court of Appeals had held a public office before they were elected to the Court. These judges are career lawyers, not career politicians.

Republicans are unhappy with the composition of the First District Court of Appeals. They have been unable to get their candidates, running only in Hamilton County, elected to the Court in recent years.  Since they can’t win in Hamilton County any more, Republicans in the General Assembly have announced publicly that they are considering another solution: gerrymander the Court.

Under Article IV, Section Three of the Ohio Constitution, the General Assembly has the power to draw the court of appeals districts. Republican leaders in the General Assembly have announced their intention to redraw the district for the First District Court of Appeals. Republicans have stated that they intend to move our County and Brown County out of the Twelfth District Court of Appeals and put those two counties into the First District Court of Appeals.

While Democrats win in Hamilton County, Republicans win by large margins in Clermont and Brown Counties. That fact is, of course, the motivation for moving Clermont and Brown Counties into the First District. The counties which would be left in the Twelfth District (Butler, Warren, Preble, Clinton, Fayette, and Madison) also vote reliably Republican. Thus, realigning the court of appeals districts in this fashion would give Republicans the real possibility of regaining control of the First District Court of Appeals without losing the Twelfth District.

But, judges are supposed to be politically neutral, right? Democrat or Republican, judges are supposed to apply the law fairly and equally to everyone who comes before their court, right? That was why, for decades, judicial candidates in Ohio did not have a D or R after their names on the ballot, right? Not anymore.

The Republicans in Columbus changed the law in 2022 so that candidates for Ohio Supreme Court and the Ohio courts of appeals now do have party identification after their names on the ballot. People running for judge in Ohio must now explicitly declare themselves as a Democrat or Republican. We are being told, explicitly, that our courts and judges are supposed to be partisan.

Redrawing the First District Court of Appeals with the intention of making it much easier for partisan Republicans to be elected judges is another measure intended to preserve one party rule in Ohio. It also makes very little sense.

The First District Court of Appeals already has one of the highest caseloads in Ohio. In many years it has the highest caseload. While Republicans plan to put two more counties into the First District, they do not plan to add any judges. In other words, the First District will be forced to handle more cases with the same number of judges.

There is a limit to what any judge can do. Adding two counties to the First District simply means it will take longer for the Court to decide the cases before it. Justice delayed is justice denied. Justice denied is perfectly acceptable to Republicans so long as they can gain control of another branch of government.

Redrawing the Court of Appeals district will not appear on the ballot for us to vote on. The Republican super majorities in both houses of the General Assembly can do that all on their own. They will do it, to the detriment of the people in all three affected counties.

There are two things you can do. First, reach out to your representatives, Jean Schmidt and Adam Bird in the Ohio House and Terry Johnson in the Ohio Senate. Tell them not to put Clermont County in the First District Court of Appeals.

It is highly likely Clermont County will be in the First District by the November 2024 election. Since all three of our legislators are Republicans who do what their party tells them, we will also have to prove that gerrymandering our courts will not work by working hard to ensure the Democratic judges in the First District are reelected in 2024.

Incumbent Democratic judges will be up for reelection in 2024, including the outstanding judges Marilyn Zayas, Candice Crouse, and Pierre Bergeron. We must help these judges become known in Clermont County. We must find them opportunities to meet and speak to our Clermont County voters.  We must donate and help them run the strongest campaigns possible. November 2024 is not that far away.  The work to preserve fair courts must start now.

Stay safe.

[1] Use of initial capital letters in a person’s name is a sign of respect.  For that reason, this column does not use initial capital letters when referring to a certain former President.