Commission member state Sen. Rob McColley, R-Napoleon, moved to approve the already-overturned maps “only for use in the 2022 election.”
That motion passed 4-3, with Auditor Keith Faber joining Democrats in opposition, as he has several times. Present via video feed, Faber said he did so in part because the plan “unconstitutionally favors Democrats.” The Ohio Supreme Court’s rejection of the maps said otherwise, noting that all of the “competitive” districts had slim margins for Democrats while no Republican-leaning districts were that close.
Those maps – the third set the commission passed in the eight-month fight over new legislative districts – are likely to be imposed by a panel of federal judges for use in an August 2 partisan primary for the state seats. Two members of the three-judge federal panel have said they will order use of those maps if the issue wasn’t settled by state officials by May 28.
Thursday’s outcome sets up a potential showdown between Republican commissioners and the Ohio Supreme Court. On April 14 justices, in tossing out the commission’s maps for the fourth time, ordered commissioners to pass and submit a fifth set by 9 a.m. May 6. Plaintiffs opposing the Republican-drawn maps have asked the state court to renew a contempt hearing for commission members, based on failure to pass constitutionally compliant maps. Whether resubmitting previously rejected maps will trigger a response from state supreme court justices remains to be seen.
State legislative district maps have been in dispute for eight months, with the commission passing four sets of maps since Sept. 15, 2021. Those maps faced repeated legal challenges from groups such as the League of Women Voters of Ohio, and the Ohio Supreme Court repeatedly agreed – holding 4-3 that each set of maps was unconstitutional.
All maps the commission approved were drawn by Republican staff and consultants, and supported only by Republican commission members. The two Democratic members have repeatedly complained they were frozen out of negotiations and didn’t see maps until shortly before a vote was called. No Republican members have supported any map proposals endorsed by Democrats.
Following their rejection of the third set of maps, Ohio Supreme Court justices told commissioners to make their fourth attempt public and hire outside help. The commission hired independent map-drawers Douglas Johnson and Michael McDonald, who hadn’t quite finished their work on the afternoon of March 28, the court’s previous deadline. Four Republican commissioners voted at that time to ignore Johnson’s and McDonald’s work, instead passing a slightly altered version of the third set of maps, which the court duly rejected on the same grounds as previous iterations: unfairly favoring Republicans.
The Ohio Supreme Court has held out for the standard of proportionality, meaning that legislative district maps should conform fairly closely to the state’s actual partisan lean of 54% Republican and 46% Democratic. Currently Republicans hold a supermajority in both the state House and Senate, and all Republican-approved map proposals would likely preserve outsized Republican majorities.
Rival maps rejected
At Thursday’s meeting House Minority Leader Allison Russo, D-Upper Arlington, sought to adopt the maps drawn by Johnson and McDonald, as checked over by Stanford University professor Jonathan Rodden, who has consulted for Democratic and other progressive groups.
“They completed constitutional maps that were also more compact than any that the commission had approved so far,” Russo said.
That redistricting plan has been filed with state and federal courts, and was delivered to legal counsel for all commission members, she said.
“It’s been available to all of us since April 8,” Russo said.
Republican commission members raised immediate objections: McColley disputed that the Johnson-McDonald maps were complete and constitutional; Faber said he first learned of the proposed maps at 3 p.m., and said the obligation was on commissioners themselves to draw maps – though none of the previously-approved plans were drawn by the commission itself; and Gov. Mike DeWine said only the third set of maps was feasible for use in an August 2 primary.
Secretary of State Frank LaRose on Thursday reiterated his explanation from the previous day as to why he thought the third set of maps must be used. Any new maps would come too late for county boards of election to use in an August 2 primary, but most of those boards had already begun implementing the third map set before the court overturned it; and so those maps could be used more quickly, he said.
Use of any newly-created maps would require state legislative action to alter some pre-election deadlines, and that would require a supermajority in the state House and Senate, LaRose said.
He added that Senate President Matt Huffman, R-Lima, and House Speaker Bob Cupp, R-Lima, told him they could not guarantee enough votes in the General Assembly to put new maps into effect immediately.
“What we have to work with is map three,” LaRose said, to laughter and heckling from the crowd.
Huffman and Cupp were redistricting commission members until Wednesday, when they stepped down and were replaced by state Sen. Rob McColley, R-Napoleon, and state Rep. Jeff LaRe, R-Violet Twp., respectively. LaRe also took over Cupp’s seat as commission co-chair with state Sen. Vernon Sykes, D-Akron.
At the end of Thursday’s 90-minute meeting, Russo read a “minority report” blasting Republican members as failing to uphold the state constitutional amendments which created the current redistricting process; defying the state supreme court; and deliberately delaying the process to force use of unconstitutional maps. The meeting adjourned without a Republican response, but with several minutes of angry yelling and chanting from the audience.
Legal responses
Shortly before Thursday’s meeting convened, commissioners and former commissioners filed responses with the state supreme court to map challengers’ request for a new contempt hearing.
Sykes and Russo placed all blame on Republican commissioners, noting they had asked Republican members repeatedly to schedule meetings well in advance of Friday’s deadline.
“Eventually, the Republican Commissioners agreed to meet, but not until May 4,” Sykes and Russo wrote. “That initial meeting has now taken place, and the record of the Republican Commissioners’ compliance or noncompliance with the Court’s orders is still being developed.”
They said the “appropriate time” for the court to address noncompliance with its orders would be after the May 6 deadline – but asked that Democratic commissioners be left out of any contempt hearing, because they tried to comply.
Huffman and Cupp, though no longer commission members, also filed a joint response scoffing at the motion to renew contempt proceedings against them.
They said the request is moot since the commission did meet prior to the May 6 deadline. Huffman and Cupp reiterated their claim from earlier filings that they couldn’t be personally held in contempt because the court order was addressed to “the commission,” not individuals. They further claimed the court doesn’t have the authority to hold legislators in contempt anyway.
Separate filings for DeWine and LaRose also argue that the court cannot hold them in contempt for “legislative activity.”
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