COLUMBUS — Attorney Phillip Strach speaks before the Ohio Supreme Court in December, arguing for the constitutionality of legislative district maps. The court heard arguments on three cases asking it to reject the maps approved in September. (Photo: Susan Tebben, OCJ)
All the Ohio Redistricting Commission members had something to say to those objecting to the legislative redistricting plans recently submitted to the Ohio Supreme Court.
Republican commission members accused map challengers of “moving the goalposts” and asking the court to gerrymander in their favor, whereas the Democrats took the side of the objectors.
The Ohio Redistricting Commission as a whole asked the Ohio Supreme Court to overrule the objections and uphold the newest legislative redistricting plan because, as the ORC sees it, the plan passed Feb. 24 “satisfies proportionality without compromise, while at the same time significantly reducing the number of seats leaning Democratic by less than 51% (toss-up seats).”
“Certainly, in this circumstance in which the challenge is to find additional opportunities for Democrats to win General-Assembly seats, moving some seats to the Democratic-leaning column is better than moving seats closer to that line without crossing it,” the ORC wrote in its response.
The ORC and other members that submitted responses argued against the court considering a different plan, as was suggested by objectors of the legislative plan. The court’s role, the commission stated, was to decide whether the plan submitted to them by the ORC was constitutional, and not to decide to implement a new plan in its place.
“The express language of the Ohio Constitution precludes this court from ordering the adoption of any particular plan,” the ORC wrote. “It represents a clear choice by Ohioans to respect separation of powers when it comes to which branch of government should draw General-Assembly plans.”
Senate President Matt Huffman and House Speaker Bob Cupp, who responded jointly, spent their response contemplating the source of power to draw general assembly district plans, while also acknowledging the newness of the process.
“The commission has tried its best to implement the new amendments and this Court has done its best to interpret them,” Cupp and Huffman said in their response.
They called the new plan “perfectly proportional” with its 54-45 partisan breakdown in the House and 18-15 GOP advantage in the Senate.
They argued that map challengers haven’t proven the maps are unconstitutional, and have instead “moved the constitutional goalposts” by saying the number considered a toss-up districts is between 50% and 52%. Cupp and Huffman, instead, say that range is between 50% and 51%.
Objectors, and Democrats for that matter, have argued that the proportions the GOP gives for the maps are inflated because of 19 districts with a Democratic advantage of less than 2 percentage points, making them competitive districts rather than Democratic strongholds.
The senate president and the house speaker say challengers would like to see the court “substitute itself” for the commission in passing a legislative map.
“Redistricting is a legislative task because it requires legislative, not judicial, judgments,” Cupp and Huffman’s attorneys wrote. “Each map contains hundreds if not thousands of individual judgments that courts are not equipped to make.”
The Republican commission members went so far as to say plaintiffs in the lawsuit “simply want the most Democratic plan they can get, and they are hoping this court delivers it to them,” accusing them of having “manipulated the statistical evidence to lead this court down a constitutionally precarious path.”
Though they argue that any commission member could have introduced the so-called Rodden III plan, a plan written by a Stanford University political science professor and commissioned by lawsuit plaintiffs, Cupp and Huffman also said that plan “does not meet strict proportionality” as they say the third legislative plan does.
Secretary of State Frank LaRose spent more time in his response criticizing objectors’ suggestions for next steps in the process than he did arguing that the map itself was constitutional.
LaRose accused court challengers of asking for more of the court than is necessary, in an effort to “divert attention away” the issue of whether the legislative map is constitutional.
Asking the court to stop LaRose from using the legislative map that has not been approved by the court is “improper and legally unsupportable relief,” according to the secretary of state.
“That is, although the Secretary instructs Boards how best to prepare for the election given the severely compressed time frame for doing so, he also advises them that the instructions might be temporary,” attorneys for LaRose wrote.
He, like others Republicans filing responses, called into question the true reason for the objections.
“The (Bria) Bennett and (Ohio Organizing Collaborative) petitioners’ true aim is clear: they want to draw Ohio’s General Assembly Map and they want to divest the commission – Republican and Democrats members alike – of their constitutional duty to do so,” LaRose said in his response.
Because “there is nothing to remedy,” LaRose said their suggesting the use of a special master “is absurd and likely unconstitutional.”
While Gov. Mike DeWine defended the map that was passed by the commission, he also made sure to tell the court how he “repeatedly urged his colleagues to re-double their efforts and formulate redistricting plans satisfying the court’s expectations.”
DeWine said the objectors “have no credible basis for objection,” said the plaintiffs “cannot demand a gerrymandered district” and continued a theme among the responses in accusing the map challengers of ulterior motives.
“Beyond unfounded complaints, petitioners’ objections now expressly state what clearly has been their objective from day one: to usurp the constitutional power and discretion of the Redistricting Commission and compel the adoption of their own redistricting plan,” DeWine’s attorneys wrote.
The Democratic commissioners, state Sen. Vernon Sykes, D-Akron, and House Minority Leader Allison Russo, took a clear side in their response to the objections, saying the legislative plan “should be invalidated in its entirety.”
Sykes and Russo accused their Republican colleagues of setting a course to “repeatedly twist the law and facts to justify unconstitutional maps or inaction” during the process, while appearing “dead set on implementing unconstitutional maps to retain Republican legislative power.”
“The Republican Commissioners’ conduct throughout the redistricting process reveals a pattern of cynical arguments and attempts to maintain a stranglehold on Republican legislative power,” the Democrats told the court.
In terms of next steps, Sykes and Russo asked that the court keep LaRose from being allowed to use the approved map for the May 3 primary, and agree to objectors suggestion that a special master be implemented to prepare a constitutional plan, paid for by the commission.
As with objectors, the Democrats said it was time to move on from the process under a GOP majority.
“The Republican Commissioners have treated redistricting like a game; the Ohio Constitution is an obstacle to creatively evade,” attorneys for Sykes and Russo wrote.