ContractsProf Blog

Editor: Jeremy Telman
Oklahoma City University
School of Law

Friday, December 2, 2022

The Parol Evidence Rule and Ohio's Unconstitutional Electoral Maps

TALThe Ohio Supreme Court struck down the Ohio GOPs gerrymandered electoral maps five times.  The GOP ran out the clock and then ultimately went to a federal court to get an order permitting the elections to go forward with one of their unconstitutional maps.  The story is told, among other places, in a recent episode of The American Life, called Mapmaker, Mapmaker, Make Me a Map. 

In sum, over the past decade, Ohio voters have leaned Republican.  In elections for statewide office, Republican candidates have averaged 54% of the vote, while Democrats get 46%.  True to form, J.D. Vance won election to the Senate with just over 53% of the vote.  Mike DeWine won re-election by a wider margin, likely the result of an incumbency boost.  The state constitution calls for electoral districts designed to reflect those election results, but in last month's elections, as a result of gerrymandering, Republicans won ten out of fifteen congressional seats, a percentage even higher than the percentage of votes won by Mike DeWine. 

And now to our parol evidence point.  In defending the GOP maps, Ohio GOP leader, Matt Huffman put forward the novel theory that when the Ohio constitution says that electoral maps are supposed to reflect "results," it meant the outcome of elections, not the percentage of votes for each side.  Republicans have won about 80% of statewide contests over the past decade and so, Huffman argued, votes that gave Republicans an advantage in less than 80% of the districts were consistent with the constitutional mandate.

The problem with that argument is that nobody else involved in the discussions of the recent amendment to the Ohio constitution thought that "results" meant "outcomes" rather than percentages of voters favoring one party or the other.  The entire point of the amendment was to achieve "proportional representation," so that Ohio's elected officials would reflect the political diversity among the electorate.  

Ira Glass, the host of This American Life interviewed the people who drafted the constitutional amendment, and all concurred:

Ira Glass

Richard Gunther said the same thing. Remember, he was one of the five negotiators who hammered out the terms of the amendment. He says, whenever they talked about election results, it was always about the number of votes, never about the number of races won.

Richard Gunther

No, that was never mentioned. And in fact, I've been a professional political scientist for five decades, and I've never seen election data used in that bizarre fashion.

Ira Glass

Matt Huffman totally sticks by his guns in this one. He told me the word in the constitution is "results." This notion that it means counting votes and not offices won--

Matt Huffman

Well, why does the results mean that? Well, because I want it to? Because it's better for me? Well, those aren't really reasons. Well, you know--

Ira Glass

But they're saying-- they're saying, just, that's what everybody talked about back then. Nobody talked about counting the number of offices.

Matt Huffman

Yeah, then it should be in the constitution. This is like the agreement, right? We enter into a settlement agreement to settle our lawsuit, and later on, you say, well, on the side, you said you were paying court costs. I never said that.

Ira Glass


Matt Huffman

Or on the side, I was supposed to get an extra $10,000. Remember, you mentioned it to me just before we signed the document? No. And so that's why we have the constitution and the votes--

Ira Glass

And you're saying the language-- the language-- the language doesn't specify. So it could be either one.

Matt Huffman


I bring this all up as a nifty illustration of how the parol evidence rule works.  Mr. Huffman implies that, because there is an ambiguity in the document, we can't have recourse to its legislative history to resolve that ambiguity; the language of the text should govern.  But in fact, parol is admitted to clarify ambiguous language.  His analogies to paying court costs or an additional $10,000 are inapt.  Those would be additional terms that likely would be excluded because they would vary the terms of the agreement and are the sort of thing one would expect to be part of the written agreement, assuming integration.  But if there is parol to support the idea that "results" means counting votes and not offices, that evidence is admissible and should aid in interpretation.

Ohio's Supreme Court rejected Mr. Huffman's interpretation of "results" in Adams v. DeWine.  But that may change as a result of the last election.  The three dissenting Justices pointed out that the majority invalidated the proposed GOP maps under the principle of "proportional representation," but the Ohio constitution makes no mention of proportional representation.  The Brennan Center reports that the newly-elected  Ohio Supreme Court Justices may swing the majority of that court from 4-3 against to 4-3 in favor of allowing electoral gerrymandering to proceed.

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