Court weighs contempt ruling for Ohio leaders in maps issue
Commission members in focus after multiple deadlines missed.
Will the Ohio Supreme Court find the state’s top officials in contempt of its orders?
That answer will depend in part on filings made Thursday by members of the Ohio Redistricting Commission seeking to explain why justices shouldn’t – or should – issue a contempt ruling for commissioners’ failure to approve new state House and Senate district maps by a May 6 deadline.
The commission voted 4-3 to resubmit a set of maps the court has already ruled unconstitutionally favors Republicans. That led plaintiffs in two parallel cases before the court — League of Women Voters of Ohio v. Ohio Redistricting Commission and Bria Bennett v. Ohio Redistricting Commission — to ask justices to renew a contempt charge they had previously let slide.
The court ordered redistricting commissioners to share why they shouldn’t be held in contempt of an April 14 order to create a new set of maps for the fifth time.
The motion May 5 from state Sen. Rob McColley, R-Napoleon, a commission member, was to approve the already overturned maps “only for use in the 2022 election.”
“The temporal limitation on the use of Map 3 is an acknowledgment that another submission
of redistricting maps will ultimately be made to this Court,” says a filing for Secretary of State Frank LaRose, a commission member and the state’s top election officer.
His filing says the commission resubmitted the old maps consistent with an expected federal court decision.
In a related federal case, Gonidakis v. LaRose, two members of a three-judge panel have said they will order use of the third map set in an Aug. 2 primary if state officials haven’t settled the issue by May 28.
LaRose’s filing notes that plaintiffs agreed April 20 was the deadline for choosing maps in order to meet legal deadlines for holding a state House and Senate primary Aug. 2. In a related news release Thursday, LaRose called plaintiffs’ continued opposition to the third map set “hypocrisy.”
Jen Miller, League of Women Voters of Ohio executive director, dismissed that argument as a distraction from the central issue.
“It’s unacceptable to run the clock out and then adopt a map that was already deemed unconstitutional by the Ohio Supreme Court,” she said Thursday. “What matters most is that voters have constitutional state House and state Senate districts, and the redistricting commission failed to meet the expectations of the Ohio Supreme Court or to uphold the Ohio Constitution as approved by the voters in 2015.”
Yes and no
In their responses Thursday to the threat of a contempt charge, several of the five Republican commission members contended the court does not have authority to hold them in contempt, as map-drawing is a legislative function. Plus, the commissioners aren’t personally liable because the court’s orders were addressed to “the commission” instead of its individual members, they argued.
The commission’s two Democratic members, state Sen. Vernon Sykes of Akron and House Minority Leader Allison Russo of Upper Arlington, say they shouldn’t be held in contempt but Republicans should. Sykes and Russo say they did all they could, repeatedly asking to hold more and earlier meetings and seeking the use of independent map-drawers as the court requested.
They charge that Republicans deliberately sabotaged the process for months, and say “strong actions” are needed to break that pattern.
“Contempt is a drastic remedy, especially against members of a constitutional body,” Sykes and Russo say in their filing. “But the Republican Commissioners have so clearly violated their obligations, so clearly indicated they have no intention of complying with the Court’s orders, that Senator Sykes and Leader Russo see no other reasonable choice.”
They dismiss as “nonsense” the Republicans’ claim that the commission could only readopt the already-rejected maps due to the need to hold a primary election Aug. 2.
The time crunch is of Republicans’ own making by “squandering” 20 days from the court’s previous order before meeting again, Sykes and Russo said.
Gov. Mike DeWine’s filing says that calls for contempt are “long on rhetoric and short on legal support.” He says the court can’t order the commission to do anything but adopt a new plan and can’t set rules for the process.
DeWine’s filing says he relied on LaRose’s assertion that wholly new maps could not be implemented in time for use on Aug. 2, and therefore “impossibility of performance excuses any personal liability.”
The joint filing for McColley and state Rep. Jeff LaRe, R-Violet Twp., says plaintiffs “mistake an electoral crisis as contempt.” They say readopting the third plan is not defiance of the court but an “act of necessity,” given the need to hold a primary Aug. 2.
McColley and LaRe further complained that the court’s orders were “ambiguous and subject to multiple interpretations.”
They only joined the commission May 4, replacing Senate President Matt Huffman, R-Lima, and House Speaker Bob Cupp, R-Lima. LaRe also took over Cupp’s seat as commission co-chair with Sykes.
The filing for Auditor Keith Faber said plaintiffs in the case really want a contempt finding against commissioners because the commission didn’t adopt plaintiffs’ “preferred map.”
“This all is just too far beyond what this Court can and should do,” it says.
Faber says he tried to comply with the court’s orders, seeking more meetings of the commission and voting against resubmitting the third map plan.
The road to here
State legislative district maps have been in dispute for eight months. Each set of maps the commission passed since September faced immediate legal challenge from progressive and voting-rights groups, 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 March 16 of the third set of maps, Ohio Supreme Court justices told commissioners to hire outside help for their fourth attempt. 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 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.
At the May 4 hearing LaRose gave a lengthy explanation for why only the third maps can now be used. Any new maps would come too late for county boards of election to use in an Aug. 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 Republican legislative leaders told him they couldn’t guarantee enough votes for that, LaRose said.