Map drawers tell high court why they shouldn’t be held in contempt

(This story has been updated.)

Seven of Ohio’s top public officials on Wednesday explained to the Ohio Supreme Court why they shouldn’t be held in contempt for not meeting a deadline last Thursday to submit another set of proposed state legislative maps.

Some said they tried to do what the court ordered. Others said the task was impossible. 

And the state’s top official, Gov. Mike DeWine, said he was powerless to get legislative leaders in his own party to keep working. For that and other reasons, he said, he shouldn’t be held in contempt personally for what the redistricting commission didn’t do.

The filings come as Ohio increasingly finds itself mired in a constitutional crisis. The state hasn’t set legislative or congressional boundaries with military and absentee overseas voting due to start in a little more than three weeks.

Even if none of the commission’s members is cited, last week’s order to explain why redistricting commission members shouldn’t be held in contempt might be having the desired effect.  After earlier this month declaring an impasse, the Republican-led commission scheduled a meeting for later Wednesday to further consider the matter.

In a move that could be intended to maintain the sense of urgency, the court on Thursday ordered all seven members of the commission to personally appear before the court at 10 a.m. on Tuesday.

“The hearing will continue until the matter is heard,” the order, signed by Chief Justice O’Connor, said. “Respondents may be accompanied by their counsel. No continuances will be granted.”

It will be a remarkable scene.

Seven of the state’s top elected officials will appear in person before a court that typically hears appeals in which only lawyers appear. Also, DeWine’s son, Justice Pat DeWine, will likely be absent after recusing himself. He did so after ethics experts accused him of having a conflict of interest for not recusing himself from the entire case.

In another development Thursday, Justices Sharon Kennedy and Patrick Fischer, both Republicans, notified the court that they dissented from the order for commission members to appear in the contempt proceeding.

The commission consists of DeWine and four fellow Republicans: Auditor Keith Faber, Secretary of State Frank LaRose, Senate President Matt Huffman of Lima and House Speaker Bob Cupp, also of Lima. It also has two Democrats: Sen. Vernon Sykes of Akron and Rep. Allison Russo of Upper Arlington. 

The commission itself was created by a 2015 constitutional amendment passed with 71% of the vote. It was aimed at limiting the extreme partisan gerrymandering for which Ohio is noted.

For example, over the past decade the GOP has won statewide elections by about 8 percentage points, but the party controls 65% of the seats in the state House, 78% of the seats in the state Senate and 75% of the state’s congressional seats.

The first two sets of maps produced by the commission would have decreased Republican dominance in the legislature, but only by a little, and despite having a GOP majority, the Ohio Supreme Court rejected them. On Feb. 7, the court set a Feb. 17 deadline to produce maps that more closely resembled the partisan makeup of the state.

Russo, one of the Democrats, proposed maps that would reduce the partisan split, but Republican members of the commission said they violated other requirements that districts be compact and that they avoid too much splitting of communities such as cities and towns. And, they claimed, because racial data were considered in drawing the maps, they amounted to unlawful racial gerrymandering. 

Sykes and Russo rejected those arguments, with Russo saying the Republican commissioners didn’t want to give up enough seats to make the legislature more closely resemble Ohio.

When “there is a gerrymander that must be undone … some of the … unfairly favored members will lose their seats,” the redistricting commission’s filing Wednesday quoted her as saying.

After two rejections by the high court, several of the commission’s GOP members declared that they were “at an impasse” and that it would be impossible to meet the Feb. 17  deadline to produce another set of maps.

In their response to the Supreme Court, lawyers for LaRose and Faber said the officials were placed in an impossible position by having to decide whether to “approve a map whose constitutionality you question or be held in contempt. So, they did not vote for it. Auditor Faber and Secretary LaRose are not liable in contempt for failing to approve a plan whose constitutionality they doubt simply because this court’s deadline was looming.”

A filing on behalf of Huffman and Cupp also said those two commissioners took the deadline seriously, but found it impossible to meet.

“While it is (regrettable) that the Commission itself was unable to ‘ascertain and determine’ a new General Assembly district plan … it certainly was not for lack of trying,” it said.

How seriously one of the lawmakers took the deadline was questioned by their Democratic colleagues. In their filing Sykes and Russo pointed to video of Cupp, the House speaker, shot by Spectrum News the day before the Feb. 17 deadline to produce new maps.

Asked about the looming deadline, Cupp laughed and said, “You’re really set on these deadlines aren’t you?” When he was told it was the Supreme Court’s deadline, he said, “They are, too.” 

For his part, DeWine stressed to the court that he implored his fellow commissioners to keep working.

“Gov. DeWine believed and strongly advocated that the commission should continue to work on crafting a new map that, to the greatest extent possible, complied with both Supreme Court decisions and the Ohio Constitution,” his filing said.

The governor’s lawyers made an argument about his legal powers that also could be seen as a sign of how diminished his political powers have become in a divided Republican Party. In an election year, DeWine can’t get members of his own party to follow his lead in drawing legislative maps.

“He lacks the legal power or capacity to dictate or compel a specific action, let alone result,” the filing says, explaining why the DeWine shouldn’t be held in contempt.

It adds a constitutional argument against a contempt citation.

“Finally, the threat of contempt runs afoul of Ohio’s constitutional separation of powers and the express language of” the anti-gerrymandering provision in the Constitution, it says. “Ohio voters, in adopting (the provision) clearly delineated the respective roles of this court and the commission on the subject of a redistricting plan. The court is empowered to review and determine the constitutionality of a redistricting plan. But it is expressly prohibited from ordering ‘the commission to adopt a particular general assembly district plan or to draw a particular district.'”

Russo and Sykes, the two Democrats on the panel, made a much simpler case for why they shouldn’t be held in contempt. They described the map Russo produced and what they said was their Republican colleagues’ unwillingness to consider it or hold meetings after the Supreme Court’s Feb. 7 order.

“Quite simply, we proposed a constitutional plan that complied with the Ohio Supreme Court’s order, but alone we do not have enough votes to pass it,” Russo said in an affidavit. “The Republican commissioners were dead set on not approving it or any other plan that complies with (the Ohio Constitution’s) proportionality requirement.”