The following article was originally published in the Ohio Capital Journal and published on News5Cleveland.comunder a content-sharing agreement.
The Ohio Redistricting Commission still hasn’t made any moves to redraw congressional maps based on the Ohio Supreme Court’s order, but how much the state’s highest court can punish the commission isn’t clear at this point.
When the court rejected the most recent set of congressional districts, they gave the General Assembly 30 days to come up with a new map. If the GA failed to do so, the court said, the ORC would be put the task for another 30-day timeline.
Ohio House Speaker Bob Cupp and Senate President Matt Huffman have both said their chambers won’t be taking action, with Cupp arguing the 30-day timeline for the GA doesn’t even start until after appeals are exhausted, including any attempts at U.S. Supreme Court Review.
In a memo to fellow Republicans, Cupp claimed a real deadline of mid-October.
Part of the issue in Ohio may be a lack of a clear solution, despite the ballot initiative passed in 2017 by a majority of Ohio voters that set the process for redistricting, and created the Ohio Redistricting Commission.
In other states, like Michigan, a commission had the final authority on redistricting, and in Virginia, if the commission failed, the state supreme court was able to draw maps.
“Ohio…specifically lacks that authority,” said Sam Wang, a professor and founder of the Princeton Gerrymandering Project. “There’s a lack of a good final backstop.”
Wang, who has also worked with other states in their redistricting efforts, said the rules in Ohio don’t specify what happens if the commission defies the state supreme court.
Some have concerns that legislative leaders are using a century-old theory called the “independent state legislature theory” to circumvent state courts, saying judicial branches have no authority over legislative duties.
Cupp and Huffman have said in the past that redistricting is ultimately overseen by the General Assembly, several members of which sit on the ORC, along with Gov. Mike DeWine, Auditor Keith Faber and Secretary of State Frank LaRose.
When questioned about whether or not the ORC members should be held in contempt for going against Ohio Supreme Court orders, some commission members went so far as to call the commission an “independent” body.
In court documents for lawsuits against Statehouse and congressional maps, state supreme court justices said the court still holds jurisdiction over the legislative maps, as the legislature and commission sit on court orders for a sixth redraw of the maps.
But in the case of congressional redistricting, the court said the decision to reject the first map was their final decision. In order for the court to become involved again, the court told map challengers they had to file a new lawsuit for the court to consider their objections.
A spokesperson for Cupp said there were no updates on any appeals of the state supreme court ruling.