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DeWine once said he’d let the courts decide. Now, maybe not so much

Mike DeWine
Posted at 7:33 AM, Aug 16, 2022
and last updated 2022-08-16 07:33:58-04

CINCINNATI  — The following article was originally published in the Ohio Capital Journal and published on News5Cleveland.com under a content-sharing agreement.

Just after he signed a bill dramatically restricting abortion on April 11, 2019, Ohio Gov. Mike DeWine expressed great respect for the courts and the rule of law.

But more than three years later — in a case involving Republican gerrymandering — DeWine’s staff seems to be saying he doesn’t have to listen to the courts if he disagrees with their reasoning.

While abortion and redistricting are separate issues, one of the most prominent journalists in the United States earlier this month showed how they’re related. Gerrymandered statehouses — particularly Ohio’s — are responsible for corruption and increasingly extreme, unpopular laws, such as Ohio’s abortion restrictions, she reported.

In 2019, DeWine signed Senate Bill 23, which bans all abortions after about six weeks of pregnancy unless it can be shown that they pose an imminent threat of killing or seriously impairing the mother.

At six weeks, many women and girls — especially the very young and the disabled — don’t even know they’re pregnant. Yet the law DeWine signed doesn’t make exceptions for victims of rape and incest.

Just after signing the bill, DeWine compared Roe v Wade, the 1973 U.S. Supreme Court decision upholding the right to abortion, to Plessy v Ferguson. That was an infamous 1896 ruling that said segregation — officially treating Black people as inferior, in other words — was constitutional.

The governor seemed to be saying that just as Plessy allowed discrimination against Black people, Roe allowed discrimination against unborn fetuses, which he regards as people. In that speech and subsequently, the governor said one of his highest duties was to “protect the most vulnerable among us.”

But now that the Supreme Court has struck down Roe, DeWine has refused to discuss the impact the law he signed has on vulnerable rape victims, including the very young and the disabled. And just days after the court struck down Roe and allowed the Ohio restrictions to take effect,  a 10-year-old rape victim to had to go to Indiana for an abortion.

In the 2019 speech celebrating the new abortion restrictions, DeWine expressed a deep reverence for the courts and the rule of law.

“We live in a country with great respect for law,” DeWine, a former prosecutor and Ohio attorney general, said. “We respect the law and we will respect what the courts decide, just as those of us who have felt that some of the previous court decisions were not consistent with the Constitution. But we have still followed those.”

He added, “We have followed the law. We will continue to follow the law.”

But that hasn’t been the case when it comes to DeWine’s service on the Republican-dominated Ohio Redistricting Commission. The body was set up pursuant to constitutional amendments overwhelmingly passed by voters in 2015 and 2018 that were aimed at easing partisan gerrymandering in Ohio, one of the most gerrymandered states.

Political scientists say that by drawing districts that aren’t competitive, legislatures fuel extremism. That’s because elections are essentially decided in party primaries, in which the most passionate members of the parties’ bases are most likely to vote. And that gives elected officials a powerful incentive to cater to those voters.

One consequence of extreme gerrymandering in Ohio has been a state legislature whose political makeup is far different from that of the state’s electorate.

Former President Barack Obama, a Democrat, won Ohio by 4.6 percentage points in 2008 and by three 2012. Then Donald Trump, Republican, won the state by about eight percentage points in 2016 and 2020. DeWine won in 2018 by less than four points.

But Republican power in the General Assembly wildly exceeds the biggest of those margins. They control 65% of the seats in the House and 76% of the seats in the Senate.

In The New Yorker earlier this month, journalist Jane Mayer wrote that because of supermajorities elected by the most extreme elements of the Republican base, the legislature is passing bills such as the 2019 abortion law. It did so even though its provisions are very unpopular with most Ohioans, she wrote.

Mayer also wrote that uncompetitive elections have produced policies that have hollowed out Ohio’s public school system and produced epic corruption scandals, such as one in which a utility corruptly spent $61 million to get lawmakers to pass a $1.3 billion ratepayer bailout, which DeWine signed into law.

The deeper harm caused by extreme gerrymandering in Ohio and elsewhere is reflected in the article’s title. Under images of the Buckeye State, it says “State Legislatures are Torching Democracy.”

When more than 70% of voters supported legislative redistricting reform in 2015, most believed they were voting for a legislature that more closely resembles the partisan makeup of the state. But the five Republicans on the seven-member redistricting commission have repeatedly passed maps that would give up only a little power in a Statehouse they dominate so thoroughly and disproportionately.

DeWine and the rest of the Republican majority have five times submitted maps that the Republican-controlled Ohio Supreme Court has rejected as unconstitutional. And they have been rejected over the “yes” votes of DeWine’s son, a justice who has refused to recuse himself even though some ethics experts say he has a clear conflict of interest because his father is a member of the commission.

After a series of rejections were followed by somewhat tweaked maps that didn’t meet the goals set by the court, Chief Justice Maureen O’Connor, a Republican, was scathing in May as she concurred with the majority’s rejection of a fifth set of maps.

Referring to a federal court ruling, she wrote that its “optimism that the commission members ‘are public servants who still view partisan advantage as subordinate to the rule of the law,’… proved to be unfounded.”

Referring to the supermajorities Republicans have because of extreme gerrymandering, O’Connor added that the federal court “failed to recognize the commission’s utter refusal to comply with this court’s orders as rulings of law and the Republican commission members’ insistence that they can act in derogation of the law and against their oaths to uphold it. The Republican dominance of the General Assembly gave rise to a telling boast by President of the Senate Matt Huffman: ‘We can kind of do what we want.'”

Many believe that the Republicans’ strategy in drawing maps was to basically ignore the court and run out the clock so that the state would have to use gerrymandered maps that are literally unconstitutional. One longtime Republican lawmaker who isn’t a member of the redistricting commission seemed to betray that sentiment on April 20.

“Too bad so sad. We win again,” Rep. Bill Seitz, R-Cincinnati, tweeted.

Dan Tierney, DeWine’s press secretary, was asked how DeWine reconciled his 2019 statement that, “We respect the law and we will respect what the courts decide…” with the chief justice’s finding that the majority DeWine was part of had ignored the orders of the state Supreme Court. He seemed to say that it was as much the governor’s job to interpret the Ohio Constitution as the Supreme Court’s.

“As the Governor stated repeatedly during the meetings of the Ohio Redistricting Commission, the Commission has an obligation to follow both the Court orders and the Ohio Constitution,” Tierney wrote in an email. “Each time the Governor voted to approve a map, he stated he believed each map complied with Sections 2, 3, 4, 5, and 7 of the relevant article in the Ohio Constitution. He also believed the Commission attempted each time to meet the provisions of 6a, 6b, and 6c. Several of the legislative maps the Governor voted for met the strict proportionality requirements set forth in the Court orders.”

Tierney went on to describe how difficult it was to comply with other provisions of the anti-gerrymandering amendment — such as prohibitions against unnecessarily splitting counties — and come up with a map that was likely to reflect the partisan mix of the state as a whole.

“The bottom line is that the Governor’s votes and actions were made with every effort to follow the rule of law, which also means following the directives of the Ohio Constitution,” Tierney said. “The disagreements of the new redistricting process are policy disagreements and nothing more.”

However, that ignores the fact that the Ohio Supreme Court is the ultimate arbiter of what the Ohio Constitution says — and it ignores DeWine’s 2019 pledge to “respect what the courts decide.”

Chief Justice O’Connor very clearly said that hadn’t happened as she rejected the fifth set of legislative maps produced by the Republican majority on the redistricting commission.

The “Ohio Redistricting Commission has, contrary to this court’s clear order, resubmitted an unconstitutional General Assembly-district plan and, in doing so, has engaged in a stunning rebuke of the rule of law,” she wrote.