Ohio Supreme Court Justice Sharon Kennedy would have allowed unconstitutional

COLUMBUS, Ohio – Ohio Supreme Court Justice Sharon Kennedy, a Republican expected to run for chief justice, would have upheld the Ohio maps for Congress and the state legislature, having sided against the majority on the court, which threw the plans out as unconstitutional gerrymandering.

This week, the Ohio Redistricting Commission is working on redrawing the Ohio House and Senate maps, using guidance from the court’s majority. Commission members said they hope to finish the work by Saturday.

If Kennedy’s views had prevailed, there would have been no redrawing. More seats would likely go to Republicans in the Ohio General Assembly and Congress — who already hold most of those seats — despite recent statewide vote totals showing Republicans receiving 54% of the vote.

Vast majorities of voters amended the Ohio Constitution to change how the state draws its political seats to get rid of partisan gerrymandering.

The redistricting decisions will almost certainly become an issue at the forefront of judicial elections for the state’s highest court. It remains an open question whether Kennedy’s views will help or hurt her as she campaigns for the Nov. 8 election.

Most court observers said it probably will not. Instead, a new requirement that general election ballots identify the candidate’s political affiliation will likely have more of an impact, as well as the midterm elections and other factors.

“I genuinely don’t think that voters are engaged in what Supreme Court justices do for a living,” said Bill O’Neill, a Democrat and former justice. “I really believe that. This is a classically political race coming up where you have two highly qualified female incumbents running for the same seat. And they’ve both been on some controversial cases. But I don’t think that’s what carries the day at the Supreme Court level.”

Justice Jennifer Brunner, who was part of the majority to throw out the maps in both cases, is also running for chief justice as a Democrat.

Ohio Democrats plan to point out how Brunner and Kennedy came down on the redistricting cases.

“There’s clearly a contrast between the two justices,” Ohio Democratic Party spokesman Matt Keyes said. “Justice Brunner ruled in favor of protecting Ohioans’ voting rights and their right to be fairly represented by lawmakers in Columbus. There’s another justice who ignored the will of Ohio voters and stood with her party in what was clearly a political decision.”

Party affiliation on the ballot

For the first time in Ohio history, ballots on Nov. 8 will show the political parties of candidates for Supreme Court and state courts of appeals.

The Ohio General Assembly made the change through an amendment inserted in the state’s two-year state operating budget, which passed last summer.

While the candidates had previously run in partisan primaries, their party affiliations never appeared on general election ballots.

“I do think, politically, having the party label on the ballot is likely to help Justice Kennedy because this has been a generally Republican state for quite a while,” said Jonathan L. Entin, a law and political science professor at Case Western Reserve University. “It strikes me that whatever harm her position in the redistricting cases might come to her will be offset — maybe completely, but at least in part — by the party affiliation.”

Democrats haven’t won any statewide seats in Ohio since 2010 — with the notable exceptions of U.S. Sen. Sherrod Brown, and Supreme Court Justices Brunner in 2020, and Melody J. Stewart and Michael P. Donnelly in 2018.

“You don’t have to be a total cynic to understand why a Republican-dominated legislature might have done this,” Entin said about the legislature requiring party affiliation on the general election ballot. “Only a few Democrats have won statewide office in decades. But Democrats won the last three of four Supreme Court elections.”

Catherine Turcer, executive director of the good-government group Common Cause Ohio, said that party labels don’t always apply to Supreme Court justices since the details of the cases they decide tend to be complicated. Justices apply previous judicial rulings, state law and the Ohio Constitution to the questions before them.

Turcer described Republican Paul Pfeifer, a retired justice who served on the court from 1993 to 2017, as an example of a justice whose decisions didn’t always fall along partisan lines.

“The Democratic-Republican label isn’t as meaningful as it is in other races,” she said. “Even though there will be the labels this time, those labels won’t be as important as are thoughtful judges. It isn’t always looking to see how pro-consumer versus pro-corporation they are. Sometimes that’s not a partisan thing. Paul Pfeifer comes to mind.”

Common Cause Ohio submitted a friend-of-court brief in the state legislative redistricting case, arguing the Ohio Redistricting Commission wasn’t transparent when it drew the maps.

Turcer said that how the justices decided on the redistricting cases would inform voters. In addition to Kennedy, Justices Pat DeWine and Patrick F. Fischer dissented on both redistricting cases. While Kennedy is likely running for chief justice, DeWine and Fischer are up for re-election in November.

“I do think that folks are going to go into this upcoming election in November, which is a distance away, having a greater sense of how judges and justices that they’re voting for, how they ruled,” she said. “I think that’s really important because one of the challenges I see with judicial elections is you’re left with a bar association rating and information from the editorial boards. It is challenging to figure out who to vote for, especially if you’re an independent. You’re not relying on a slate card.”

The midterms and Irish surnames

Despite supporting unconstitutional maps, another factor that could play in Kennedy’s favor is the midterm elections, which occur about halfway through a president’s four-year term, said John Green, emeritus director of the Ray C. Bliss Institute of Applied Politics at the University of Akron.

“Midterm elections have a really strong pattern,” Green said. “That is, the party that controls the White House doesn’t do as well as the party that doesn’t control the White House. It’ll probably be a pretty good Republican year.”

Republicans and independents who are unhappy with inflation, gas prices and the withdrawal in Afghanistan will be more motivated to vote than Democrats who are discouraged that President Joe Biden’s agenda has stalled, he said.

Further motivating Republicans to vote in November will be the gubernatorial race, when Gov. Mike DeWine could be up for a second term if he wins the GOP primary, and the currently crowded U.S. Senate race, which will be open after U.S. Sen. Rob Portman announced he wasn’t seeking re-election.

Green researched judicial races in 2014 and found half of the respondents said they voted less frequently for judges than for other candidates. However, thanks to party labels, he thinks that the number of Ohioans voting for a chief justice will be much higher in November than in the past.

“The turnout for judges will still be substantially lower for governor and for senator,” he said.

Ohioans oddly tend to vote for politicians with Irish last names. “Kennedy” is a good name in that respect, said Entin, the Case Western Reserve professor.

“It’s not like that’s the be-all and end-all,” he said. “But elections turn on a lot of different things.”

Brunner, her likely opponent for chief justice, may have more name recognition, having served as Ohio secretary of state from 2007 to 2011.

Working against Kennedy

While Kennedy took the side of fellow Republicans, her likely opponent for chief justice, Brunner, was part of a majority opinion that was bipartisan.

Chief Justice Maureen O’Connor, a Republican, joined in on the majority opinion in both cases.

“People want a court that’s independent of this legislature,” said David Pepper, former Ohio Democratic Party chairman.

He said that Kennedy’s positions of dissent do not reflect how voters felt in 2015 when they approved the Constitutional amendment to change state legislative redistricting, 71.5% to 28.5%, or in 2018 when they approved changes to congressional redistricting, 74.9% to 25.1%.

“Four people said, ‘We’re the check and balance if the legislature defies the Constitution. We call it out and overturn their decision,’” Pepper said. “And the other three are basically saying, ‘The legislature can do what it wants.’”

However, Green of the University of Akron’s Bliss Institute noted that the opinion was split.

“Remember, the Supreme Court was pretty evenly divided, 4 to 3,” he said. “My view is that’s a pretty divided decision.”