COLUMBUS — Ohio’s Republican state legislative leaders argued Friday that because they passed new state legislative maps without Democratic support, under Ohio’s new system of anti-gerrymandering rules, the Ohio Supreme Court is powerless to strike them down.
In a Friday filing, out-of-state lawyers representing House Speaker Bob Cupp and Senate President Matt Huffman made that argument — while conceding it could just be one interpretation — in response to an unusual request for more information Ohio Supreme Court justices issued earlier this week.
In contrast, Attorney General Dave Yost, representing Gov. Mike DeWine, Secretary of State Frank LaRose and state Auditor Keith Faber — three other Republicans who serve on the Ohio Redistricting Commission — in their own filing on Friday defended Ohio’s new redistricting rules as enforceable by the court.
The filing from Yost, a Republican, described the argument advanced by Cupp and Huffman as a “parsing” of the law that yields a “surprising result” that four-year maps can’t be challenged in court.
“The Court should not read [the new constitutional rules] as an absolute barrier to judicial relief against a four-year map,” Yost said in the filing, while continuing to argue the maps should be upheld.
The difference in arguments Friday is just the latest example of the legal schism between the two sets of Republicans on the Ohio Redistricting Commission, which voted to approve the new maps in September in a party-line vote.
Cupp and Huffman — who have hired Nelson Mullins Riley & Scarborough, a North Carolina law firm that specializes in mounting Republican defenses against gerrymandering lawsuits — previously tried to avoid providing discovery, the routine process of exchanging information in a lawsuit, by arguing the Ohio Supreme Court hadn’t specifically ordered it. They reversed course after, in response to a complaint from plaintiffs in the case, the court ordered them to do so.
LaRose, Faber and DeWine also have described Cupp and Huffman freezing them out of the process of drawing the maps, according to depositions conducted as part of the lawsuit, while also criticizing a mandatory written legal statement Republican lawmakers’ staff produced in defense of the maps.
The statement, required under the new redistricting rules, argued that Republicans could award themselves as much as 81% of Ohio’s state legislative seats while still complying with a different rule that maps award districts in proportion with statewide voter preferences. LaRose was especially pointed in his criticism of the statement, calling it “asinine” in a private text message that made its way into the public record after it was requested by plaintiffs in the case. The argument is based on the fact that Republicans have won 15 out of 16 statewide partisan elections, or 81%, over the previous decade.
Friday’s filings arguing what Ohio Supreme Court justices can and can’t do came in response to a request from the court, which had asked earlier this week for the parties in the case to present arguments over how a particular section of the new redistricting rules affects the court’s authority to possibly strike them down.
The section of law the court asked about describes how maps passed with bipartisan support last for the typical 10 years, while maps passed without bipartisan map expire after four years.
The request for extra information followed oral arguments in the case given the previous Wednesday, during which parties presented what was to have been the final word on their cases.
The American Civil Liberties Union of Ohio, representing one set of plaintiffs trying to have the maps thrown out, had a simple response in their Friday filing.
“The answer, in short, is none,” said the ACLU, representing the League of Women Voters of Ohio and the A. Philip Randolph Institute. Two other groups also are suing over the maps: an affiliate of a national Democratic redistricting group led by former U.S. attorney general Eric Holder and a coalition of generally left-leaning advocacy groups, including the Ohio Organizing Collaborative.
The groups argue that Ohio’s maps, which award 66% of the state’s legislative seats to Republicans, violate the state’s anti-gerrymandering rules, since the GOP got just 54% of the statewide vote.
But Republican state officials have been unified in arguing the rules for practical reasons are optional, and can’t be enforced by the courts.
Republicans hold a 4-3 majority on the Ohio Supreme Court, although Republican Chief Justice Maureen O’Connor is widely seen as a potential swing vote on the case.
In their Friday filing, Cupp and Huffman argued that legal text describing the process behind the four-year map lacks language pointing to another section of the law that describes the Ohio Supreme Court’s legal authority to hear lawsuits over the map. They presented what they said was a logically coherent reason why Ohio’s new redistricting rules would say that the weaker, minority party would be unable to legally challenge maps passed without their votes.
Designing the system this way gives the minority party – Democrats, currently – an incentive to make a deal, the filing argues.
“The majority party has the incentive to negotiate successfully for a ten-year plan to avoid the draconian possibility that a four-year plan must be changed after it expires by a newly constituted version of the Redistricting Commission… On the other side, if four-year plans are not subject to judicial review, then the minority party would be equally incentivized to negotiate its position,” Cupp and Huffman said in the filing.
The filing concedes that Supreme Court justices “reasonably” could take a different view on what their power is under the law. And if they do, they should uphold the maps anyway, they said.
A separate, parallel legal process also is playing out over challenges to new Republican-drawn congressional maps. On Friday, the Ohio Supreme Court set oral arguments for lawsuits in those cases for Dec. 28.
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