As Ohio’s Redistricting saga continues…Republican justices at odds

February 26, 2022

Since the Ohio Redistricting Commission did not submit constitutional state House and state Senate maps by the February 17th deadline mandated by the Ohio Supreme Court, Chief Justice Maureen O’Connor (R) the following day – Friday, February 18th – issued an Order that each of the members of the Ohio Redistricting Commission show up in person in front of the court on Tuesday, March 1, 2022, to explain why each of the members should not be held in contempt of court for missing the court’s deadline.

Later, Justice Pat DeWine – son of Governor Mike DeWine who is a member of the Ohio Redistricting Commission, finally announced he would recuse himself from the contempt hearing. Chief Justice O’Connor appointed Judge W. Scott Gwin to replace Justice DeWine for the contempt of court hearing. Judge Gwin serves in the Fifth District Court of Appeals and is a Democrat, but party affiliation is not one of the factors the chief justice must consider in assigning a judge. The state supreme court’s guidelines for assigning judges tells the chief justice to consider the proximity of the judge to the court, the status of the judge’s current docket and their competence “for the prospective duties.” Judge Gwin has experience sitting on the Ohio Supreme Court as a visiting judge. In 2018, he heard oral arguments in the school funding case of the now-defunct Electronic Classroom of Tomorrow. He sat in for former Justice Judith French when she recused herself. In addition, only a court of appeals judge can be assigned to serve on the supreme court.

In the mean time, on Thursday evening, February 24, 2022 – a week after the February 18th deadline set by the Ohio Supreme Court, the Ohio Redistricting Commission passed new Ohio House and Ohio Senate maps in a 4-3 vote, with Republican Auditor Keith Faber joining Democrats Senator Dr. Vernon Sykes and Leader Allison Russo voting no. Both Senator Sykes and Leader Russo maintained throughout Thursday that they were left out of the process, and the map that Republicans presented did not address toss-up districts. Since both members of the minority party voted no, the maps would be in effect for four years as opposed to ten years. Unfortunately, the maps have the same “asymmetry” problem as with the previous maps adopted by the commission and rejected as unconstitutional by the Ohio Supreme Court: A disproportionate number of Democratic seats have narrow “tossup” margins while Republican seats are safe and secure as red districts.

  • House: R-51, D-20, tossups that lean D-28
  • Senate: R-16, D-5, tossups that lean D-12

Now we are waiting to see what the court—which spoke explicitly about the “asymmetry” of the maps in its last opinion— will do: uphold or reject this latest redraw by the commission. In addition, when the commission filed its third set of state legislative maps with the court, Ohio Attorney General Dave Yost included a request that the contempt of court hearing be postponed. Then drama between the Republican justices spilled over late Friday afternoon, February 25, 2022, when Chief Justice O’Connor issued an Order saying the hearing scheduled for Tuesday, March 1st, for contempt of court was postponed. Because the Order was only signed by Chief Justice O’Connor, Justices Sharon Kennedy and Patrick Fischer both issued statements with the court that they disagreed with the decision to call the commission to court, with Justice Kennedy filing a full dissent along with her statement. Justice Kennedy, a candidate for chief justice in the upcoming November 2022 general election, denied that a vote happened between all the justices and called out Chief Justice O’Connor for making a unilateral decision on behalf of the entire court.  Chief Justice O’Connor’s staff responded that this was an “administrative matter” – involving scheduling rather than one making a ruling in a case – thus, it’s under the chief justice’s purview alone. Apparently, there is now a spat ongoing between the Republican justices at odds over chief justice powers.

Finally, the commission turned its attention to a congressional map. During their Wednesday, February 23rd and Thursday, February 24th meetings, the commission heard testimony from individuals and group representatives who had submitted complete congressional plans to the commission. Senate President Matt Huffman (R) said a hearing about the congressional map would be held on Tuesday, March 1st, at 2:00pm.

To complicate things a little more, a federal lawsuit was filed by a group of Republican activists asking the federal court to reinstate maps that had been rejected by the Ohio Supreme Court as unconstitutional. On Thursday, February 24th, the ACLU filed a motion asking for a stay in the case. The motion, filed on behalf of the League of Women Voters of Ohio and the A. Philip Randolph Institute notes, “It would be inappropriate for this Court to hear this case at the present time, given the ongoing state redistricting and corresponding litigation pending before the Ohio Supreme Court. Here is the ACLU’s press release for more details. A preliminary hearing took place on this case on Friday, February 25th. Federal Judge Algenon L. Marbley scheduled a hearing for Monday, March 7th, to give the Ohio Supreme Court time to deal with the third set of state legislative maps submitted by the Ohio Redistricting Commission first.

To complicate things even more, Secretary of State Frank LaRose (R) issued a directive to all 88 county boards of elections to start the process of placing General Assembly candidates on the ballot without final maps in place. This move by LaRose would disenfranchise Ohio voters and could cost Ohioans millions of dollars by likely setting up two primary elections – estimates have been between $20-$25 million – by moving forward on costly administrative processes including printing ballots that don’t reflect what the final districts will likely look like.

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