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Objectors: Legislative maps unconstitutional, court should take power away from commission

Posted at 7:07 AM, Mar 01, 2022

The following article was originally published in the Ohio Capital Journal and published on under a content-sharing agreement.

Anti-gerrymandering groups and Ohio residents are yet again challenging the legislative district maps approved by the Ohio Redistricting Commission. After three tries, they say the commission’s time is up.

All three of the objections once again called into question the partisanship of the map approved last week by the Ohio Redistricting Commission. The challengers claimed violations of Section 6 of the Ohio Constitution, which prohibits favoring one political party over another in district maps.

“The (approved) plan is pervaded by extreme partisan asymmetry,” said the League of Women Voters of Ohio in their objection to the legislative plan.

The Ohio Organizing Collaborative joined all three plaintiffs in calling the maps unconstitutional, saying the ORC’s “history of defiance and the constitutional crisis that the commission has cynically and contemptuously thrust upon this court” means the Ohio Supreme Court needs to take unprecedented steps to stop the maps from being used and take the power away from the commission.

A group of Ohio residents led by Bria Bennett, a Democratic candidate for state representative, posed possible next steps, including court intervention in the redistricting process.

They agreed with other objectors that the maps lopsidedly favor the Republicans, and shamed the commission members and map-drawers for the secrecy of the process and for crafting a map “to suggest a thin veneer of compliance with the Court’s orders while still stacking the deck in favor of the majority party.”

“This court has the power and the obligation to uphold the law and call the February 24 Plan what it is – a charade intended to feign compliance with the court’s orders while, in fact, systematically and primarily favoring the majority party,” attorneys for the Ohioans wrote.

Since this is the ORC’s third bite at the legislative apple, plaintiffs in the lawsuits are looking to the court and their options to get the job done.

Attorneys representing Bennett and other Ohio residents asked the court to use its power to make the maps fair, starting with stopping the ORC-approved maps from being used for the May 3 primary. The other objections also asked for the court to put a stop to the approved maps.

Secretary of State Frank LaRose (also a member of the ORC) has told county board of elections to include legislative races in primary ballots, based on the as-yet non-court-approved maps. LaRose said in an update over the weekend that House Speaker Bob Cupp and Senate President Matt Huffman (both fellow commission members) directed him to do so in a letter.

But stopping the use of the maps isn’t enough, according to Bennett.

“Given the commission’s refusal to adopt a constitutional plan drawn in compliance with the Court’s orders, the commission has thrust Ohio into a constitutional crisis where it lacks constitutionally compliant maps for the approaching May primary that the General Assembly refuses to move,” attorneys wrote.

If the court decides to return the matter back to the commission, plaintiffs in the case said the court should provide “guidance and assistance” in the form of a special master “to assist the commission in adopting a constitutional plan.”

“A neutral Special Master could also provide minute-by-minute feedback on a plan drawn collectively by the commission in public view, instead of evaluating maps after their passage, as has thus far been the role of experts in the process,” court documents argued.

The map challengers said the court has the power to do so based on its “inherent power to enforce … final judgments,” and the power for “orderly and efficient exercise of jurisdiction,” meaning maintaining the authority of the supreme court.

Bennett also said holding commissioners in contempt should still be an option on the table until the commission comes up with a constitutional map.

One other option the challengers gave was to use a map that has already been mentioned by both the Ohio Supreme Court and by members of the Ohio Redistricting Commission: The Rodden III Map.

The map, drawn by Stanford professor Jonathan Rodden was commissioned by anti-gerrymandering groups as part of the initial lawsuit, to prove that a balanced map could be drawn. But after the ORC declared an impasse on maps, Auditor Keith Faber urged the commission to keep going and possibly consider the Rodden map as a starting point.

As part of this current round of objections, Rodden submitted his own statement to the court. He joined with challengers in saying the maps were skewed to benefit the GOP, specifically because the 54-45 partisan breakdown claimed by mapmakers relies on “toss up” districts that on the surface seem to be Democratically-leaning, but have such a slim margin, they can’t be considered definitively Democratic.

Rodden’s analysis of the approved map showed only 26 of the 45 “majority-Democratic” seats in the House and eight in the Senate have a Dem advantage above 52%.

Every majority-Republican House and Senate seat, 54 in the House and 18 in the Senate, have a GOP advantage in vote shares above 52%.

“The result of this deliberate skewing of districts is that Democrats cannot under virtually any circumstances hope to gain seats beyond their proportional share … while Republicans are nearly guaranteed to win more House and Senate districts than their proportional share of seats, and likely many more than their proportional share,” Rodden said in court documents.

If the races between 48% and 52% advantage, which is what Rodden defines as a “tossup,” are excluded from the map, the plan has a 54-26 GOP advantage in the House and an 18-8 in the Senate, meaning the GOP would hold 67.5% of House seats and 69% of the Senate.

That “unusually large” amount of districts with Dem advantages that are about 51%, show GOP map-makers had a certain goal in mind, Rodden told the court.

“This is to say, it appears map drawers were instructed to draw as many of the Democratic-leaning districts as possible to be as close as possible to 51%,” Rodden wrote.

There is also a federal lawsuit waiting in the wings that seeks to take the redistricting power away from the state court as well. Judge Algenon Marbley set a hearing in the case for March 7, hoping to give the supreme court time to sort out their cases before the federal case went forward.

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