Ohio Republican legislative leaders appeal congressional map to U.S. Supreme Court

Ohio Republican legislative leaders have appealed to the U.S. Supreme Court a bipartisan Ohio Supreme Court ruling that the state’s Republican-drawn U.S. Congressional map being used for the 2022 Election is unconstitutional.

The map was passed along party lines in a vote of the Ohio Redistricting Commission (ORC) after the Republican supermajority General Assembly failed to produce a second map when the first map passed by it was also declared an unconstitutional gerrymander by the Ohio Supreme Court majority.

Calling the decision “fundamentally flawed,” the group of Ohio Republicans legislators argued in a news release that the state supreme court “assumed a role the federal constitution does not permit it to exercise.” Because of this, they said, “This is a matter that needs resolution by our Nation’s highest court.”

The appeal was announced by Ohio House Speaker Bob Cupp, of Lima; Ohio Senate President Matt Huffman, also of Lima; Republican state Sen. Rob McColley, of Napoleon; and Republican state Rep. Jeff LaRe, of Violet Township, Fairfield County. McColley and LaRe assumed Huffman and Cupp’s positions on the commission earlier this year after the two chamber leaders stepped away from the process.

“The United States Constitution expressly puts the responsibility to prescribe ‘The Times, Places, and Manner of holding Elections for Senators and Representatives…’ with the legislature of each state,” the group said in their release. “As our petition lays out, the 4-3 decision of the Ohio Supreme Court encroached on this legislative authority in multiple ways, and that action deserves to be tested in the U.S. Supreme Court. Our appeal today sets that process in motion.”

The appeal centers its argument around the Elections Clause of the U.S. Constitution and asks whether state courts violate the Elections Clause by enforcing state constitutional limits on a state legislature’s power to regulate congressional elections. It also asks whether state courts violate the clause by allegedly dictating the results that congressional maps must achieve or crafting extra-constitutional rules for state legislatures to follow when drawing such maps.

Ohio voter preferences averaged over 10 years of statewide elections shows a 54% to 46%, Republican to Democratic advantage, but the map in question gives Republicans 10 safe seats and Democrats two, with the other three of Ohio’s 15 U.S. Congressional districts drawn to be relatively competitive.

For the 2022 Election, as of Sunday, Cook Political Report lists only these three U.S. Congressional races in Ohio as competitive: OH-1 as a Republican toss-up, OH-13 as a Democratic toss-up, and OH-9 as lean Democratic.

In July, the Ohio Supreme Court rejected the commission’s map for Ohio’s U.S. congressional districts, saying it violated the constitution by favoring one political party over another.

In its decision, the Ohio Supreme Court pointed to constitutional language approved by voters that lawmakers “shall not pass a plan that unduly favors or disfavors a political party
or its incumbents,” and said, “the commission may not ignore the legal defects in the original congressional-district plan that this court identified. Indeed, the commission has a constitutional duty to remedy the defects in the previous plan.”

The decision noted Republican arguments that language in the constitution was intended to establish a “safety valve of sorts” by allowing the commission to adopt a remedial plan without being constrained by the anti-gerrymandering provisions that had applied to the General Assembly.

“But under that interpretation, if the majority-party members of the General Assembly and the commission want to avoid the anti-gerrymandering requirements of (the Ohio Constitution), they can simply refuse to comply with those requirements when adopting both an original plan and a remedial plan,” the majority wrote. “In other words, the majority party in the General Assembly could simply ignore the anti-gerrymandering requirements when adopting an original plan, knowing that if this court rejects that plan and if the duty to adopt a legislative-districting plan is transferred to the commission, then the commission would be free to adopt a plan that likewise disregards the anti-gerrymandering requirements that were overwhelmingly approved by Ohio voters.”

The Ohio Supreme Court’s 4-3 decision reflected the other decisions the court has made on redistricting: Republican Chief Justice Maureen O’Connor voted to reject the maps, along with Democratic justices Michael Donnelly, Melody Stewart and Jennifer Brunner. Republican Justices Sharon Kennedy, Patrick DeWine and Patrick Fischer all dissented in the cases.

The court gave the General Assembly 30 days to pass a new map, and if they couldn’t, the Ohio Redistricting Commission had another 30 days to do so. Neither the General Assembly nor the ORC has made an attempt since the ruling to draw a new map.

In August, Cupp sent a letter to members of his chamber calling the deadlines a myth. He argued a deadline for new congressional maps “does not commence until all appeals are final,” including a deadline for appeal to the U.S. Supreme Court of 90 days from the date of the state supreme court decision. This appeal on Friday to the U.S. Supreme Court came within that 90 day window, which would have ended today, Monday.

At this point, if the matter comes again before the Ohio Supreme Court, it will most likely be after the new year, with new justices determined in Ohio’s Nov. 8 General Election. Three seats are up for election this year, including the swing vote in redistricting cases: Republican Chief Justice Maureen O’Connor, who is forced under Ohio law to retire due to age.

Running to replace her as chief justice is current Republican Justice Kennedy and Democratic Justice Brunner.

Ohio House Democratic Leader Allison Russo, one of two Democrats on the seven-member redistricting commission, who voted against the map, called the U.S. Supreme Court appeal “another blatant attempt by Republicans to ignore, erode and overrule the democratic process guaranteed in the Ohio and U.S. Constitutions.”

“It has been made perfectly clear over and over again that the power grab being attempted to take away Ohioans basic freedom to vote fairly is nothing but unlawful,” she said in a statement.

League of Women Voters of Ohio Executive Director Jen Miller criticized what she called a “fringe legal theory” Republicans are using in their appeal, known as “independent state legislature theory,” that Miller said “doesn’t even apply in this scenario.”

That theory is being tested in another case, Moore v. Harper, which the Supreme Court has agreed to hear. This legal theory, which has been repeatedly rejected by previous U.S. Supreme Courts, would allow state legislatures to gerrymander their states with impunity and pass voter restriction measures without interference from state courts.

“The Ohio General Assembly exercised its authority when it helped develop the constitutional amendment that changed mapping processes and gave the Ohio Supreme Court the authority to strike down district maps,” Miller said.

Ohio voters passed redistricting reform to stop gerrymandering in 2018 with nearly 75% in favor.

Issue 1 in 2018 resulted from negotiations between state Senate Republicans, Senate Democrats — including Republican Senate President Huffman and Democratic redistricting commission member state Sen. Vernon Sykes — and the leaders of a committee involved in a redistricting initiative campaign, including the League.

Ballot language negotiated upon by legislative leaders and approved by 3/4 of Ohio voters is now in the Ohio Constitution as Article XIX.

Section 3 (A) states, “The supreme court of Ohio shall have exclusive, original jurisdiction in all cases arising under this article.”