Contempt or best effort? Redistricting members explain selves to Supreme Court

FILE - In this Sept. 15, 2021, photo, Republican Ohio Gov. Mike DeWine, foreground, speaks to state Sen. Vernon Sykes, seated, the co-chair of the Ohio Redistricting Commission, as other members of the panel prepare for a meeting on at the Ohio Statehouse in Columbus, Ohio. The GOP's focus on the makeup of state supreme courts escalated this week after a series of legal setbacks frustrated the party's effort to redraw congressional maps in Pennsylvania and North Carolina. That prompted some leading Republicans to press the party to pay more attention to elections in November in which some supreme court justices will face voters. (AP Photo/Julie Carr Smyth, File)

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FILE - In this Sept. 15, 2021, photo, Republican Ohio Gov. Mike DeWine, foreground, speaks to state Sen. Vernon Sykes, seated, the co-chair of the Ohio Redistricting Commission, as other members of the panel prepare for a meeting on at the Ohio Statehouse in Columbus, Ohio. The GOP's focus on the makeup of state supreme courts escalated this week after a series of legal setbacks frustrated the party's effort to redraw congressional maps in Pennsylvania and North Carolina. That prompted some leading Republicans to press the party to pay more attention to elections in November in which some supreme court justices will face voters. (AP Photo/Julie Carr Smyth, File)

Facing a possible renewed contempt hearing before the Ohio Supreme Court, members of the Ohio Redistricting Commission on Monday filed responses explaining their actions in the last-minute approval of a fourth set of state House and Senate district maps.

Four Republican members — Auditor Keith Faber; Secretary of State Frank LaRose; Senate President Matt Huffman, R-Lima; and commission co-chair House Speaker Bob Cupp, R-Lima — assert that the court has no power to hold commissioners in contempt.

Gov. Mike DeWine’s filing describes the commission as “an independent legislative body,” arguing that because legislators can’t be held individually liable for their legislative acts, commission members are absolved from liability. Some Republicans also said since the court ordered “the commission” to act, they can’t be held liable individually.

Democratic members House Minority Leader Allison Russo, D-Upper Arlington, and commission co-chair state Sen. Vernon Sykes, D-Akron, by contrast, asked the court to throw out the latest maps, order the commission to reconvene, and adopt a plan by the independent mapmakers in time for the court to issue a final ruling by April 20.

A joint response from Huffman and Cupp would have the court believe that what professional independent map-drawers could not do in five days, Republican staff could do in five hours.

The plan the commission approved shortly before the court-ordered March 28 deadline “complies with the Constitution,” Cupp’s and Huffman’s response said.

“With that tight timeframe, President Huffman suggested a little after 5:00 pm that the Commission needed a ‘failsafe’ to have something that could be filed by midnight, if the map-drawers ran out of time,” their response says. “The Commission voted 5-2 to approve President Huffman’s motion that the staff begin the work — at the Commission’s direction — of modifying the prior plan.”

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That prior plan is the one the court threw out March 16. Justices ruled 4-3 that, like the two previously overturned plans, it was gerrymandered to unfairly favor Republicans.

The maps passed March 28, like all three previous sets, were drawn almost exclusively by Republican legislative staff and consultants. The commission’s Democratic members, and occasionally some Republicans, have regularly complained that they were shut out of the process until at best a few hours before they were told to vote on a set of maps.

Democratic response

The joint response from Sykes and Russo says the just-approved fourth plan is “all but identical” to the one the court recently overturned.

“The Fourth Plan was, for the fourth time, the product of a single party’s exclusive control of the redistricting process,” Democrats’ response says.

They assert that the independent consultants’ plan was ready, “subject to final checks for technical flaws,” and met the court’s guidelines.

The U.S. Sixth District Court of Appeals, in a separate Republican-backed lawsuit, has indicated that unless the state settles on district maps by April 20, then federal judges will “almost certainly” impose a map — and it’s impossible to tell which version that court might choose, Sykes and Russo said.

“The Republican Commissioners may believe that if they continue to disregard this Court’s orders in favor of maps that entrench their supermajority, the federal court will be forced to adopt one of their unconstitutional maps,” Democrats’ filing says. “Perhaps they plan to adopt a fifth unconstitutional plan that this Court will not have time to invalidate — an end-run around this Court and, more importantly, the Ohio Constitution.”

Other Republicans

DeWine’s response said the court’s deadline created “two impossible choices,” either approving an unfinished plan or not filing one at all. It critiques the outside map-drawers’ draft as reducing competitive districts, splitting cities and drawing noncompact districts, and — in a reversal — saying it was drawn primarily to favor Democrats.

The court had ordered a de facto reduction in Republican districts by insisting on a proportion of seats that met Ohio voters’ actual preferences in the last few elections. That breakdown is 54% Republican and 46% Democratic. Under the maps in place since 2012, Republicans hold a supermajority in both houses.

The overturned map proposals would likely have lessened that margin but not to a 54%-46% split, or would technically meet that standard but make many districts “Democratic” by razor-thin margins while keeping “Republican” districts more secure.

LaRose’s filing argues that approving a fourth Republican-drawn plan was commissioners’ “only available option,” despite the court’s order to make use of independent mapmakers.

The plan drawn by those hired consultants wasn’t complete by the court-ordered deadline of midnight March 28, hadn’t been “thoroughly reviewed” by commissioners, didn’t allow for amendments, and “in the opinions of several of the Republican members of the Commission, suffered from numerous constitutional deficiencies,” his filing said.

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LaRose acknowledged that the plan approved by a 4-3 vote, with Faber again joining Democrats to oppose it, had not been seen by any commission members but Cupp and Huffman until shortly before they voted on it.

Faber’s filing says he tried his best, but the commission just ran out of time.

“The Commission members engaged more thoroughly with their staff, the map drawers, and their fellow members during this fourth round of drafting and adopting a General Assembly-district plan than it had with any other plan in the redistricting process,” it says.

Two days before the March 28 deadline, commissioners agreed that map drawers should avoid creating districts that pair incumbents who can run for reelection, Faber’s filing said. That took more time.

Now, he says, the Supreme Court should concentrate not on contempt hearings but on determining the constitutionality of the fourth map.

Voting conundrums

As a result of the ongoing map dispute, election officials in Ohio’s 88 counties are getting exactly what they told legislators they didn’t want: a split primary.

In late February, the Ohio Association of Election Officials sent a letter to legislative leaders saying that if all races couldn’t be on the May 3 ballot, they preferred to move the entire election to a later date, to avoid doubling up on costs and the need for poll workers. Splitting the primary into two elections would also confuse voters and further depress turnout in what is already expected to be a low-turnout election, officials said.

LaRose sent a memo to all county boards of election Friday afternoon telling them to send out ballots for the May 3 election without state House and Senate races, or each political party’s state central committee — meaning there will have to be a second primary for those elections.

“We don’t have a choice now. Now the question is, when’s it going to be?” said Brian Sleeth, Warren County Board of Elections director and president of the Ohio Association of Election Officials.

Military and overseas ballots are to be mailed Tuesday, which is also when early voting starts.

Voters are already asking Sleeth’s office for absentee ballots for both elections, even though state House and Senate districts remain unsettled and no second primary date has been set, he said.

“I can’t give them an application for an election that doesn’t exist yet,” Sleeth said.

Several questions remain to be resolved, such as whether voters will have to file separate ballot applications for each primary and whether they can change party affiliation between elections, he said.

County election officials have told established polling locations to keep that space free Aug. 2, so if the second primary is scheduled for that date, it shouldn’t cause location problems, Sleeth said. But if a different date is chosen, some polling places may need to move temporarily, further confusing voters, he said.

Election officials’ greatest need for both primaries will be finding and training enough volunteer poll workers, Sleeth said. Anyone willing to work the polls should contact their local county board of elections.

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