‘Troubling’ legal theory pops up in redistricting, questions power to draw maps
Ohio’s leaders echo theory’s language
Attorney Phillip Strach speaks before the Ohio Supreme Court in December, arguing for the constitutionality of legislative district maps. The court heard arguments on three cases asking it to reject the maps approved in September. (Photo: Susan Tebben, OCJ)
A very old legal theory is coming up amid redistricting chaos and Ohio’s legal limbo on its legislative and congressional maps.
The theory, called the “independent state legislature doctrine,” interprets the federal elections clause of the U.S. Constitution to say that state legislatures are the sole power-holders when it comes to federal elections.
That theory could delegitimize the power of the two other branches, from the state supreme court’s jurisdiction when it comes to district maps to the governor’s veto power.
The elections clause does deem the legislature as the authority on the “time, place and manner” of federal elections, but also allows Congress to “at any time by law may or alter such regulations.”
The independent state legislature interpretation has been rejected by the U.S. Supreme Court cases regarding North Carolina and Pennsylvania, but justices have hinted that they’d been willing to consider the topic again.
Ohio leaders and the power to redistrict
The issue may hit closer to home with Ohio’s redistricting leaders using similar legislative power arguments in their own court filings on redistricting.
Members of the Ohio Redistricting Commission, along with other members of the legislature, have echoed the theory that the legislature has the control not only over elections, but over redistricting.
“Redistricting is a legislative task because it requires legislative, not judicial, judgments,” Senate President Matt Huffman and House Speaker (and ORC co-chair) Bob Cupp said in a March 3 response to a lawsuit challenging congressional redistricting maps. “Each map contains hundreds, if not thousands, of individual judgments that courts are not equipped to make.”
Professor Mark Brown, who teaches constitutional law and redistricting at Capital University Law School, said the unfolding of Ohio’s redistricting process has been an “unfortunate, disappointing … illustration of a phenomena that’s kind of reached across the country in the last few years.”
“It’s kind of: If the courts rule against me, the courts are biased; the courts are wrong,” Brown said at an Equal Districts Coalition press conference on Tuesday. “I’m just not going to follow what the courts say.”
Huffman recently told reporters that the Ohio Supreme Court did not retain jurisdiction on the congressional map, unlike the legislative map-making. In the majority opinion striking down the second attempt at Ohio’s Statehouse districts, justices expressly said they would continue to be the venue for approval or disapproval.
Court filings from Huffman and Cupp on March 10 also said duties of the Ohio Redistricting Commission were “independent of any other branch of government in Ohio.”
“It is the commission and the General Assembly who solely possess the legislative authority to create legislative and congressional districts,” attorneys wrote.
In separate filings supporting the same arguments that Huffman and Cupp made, Secretary of State Frank LaRose and Gov. Mike DeWine accused litigants in the cases of not only trying to influence the courts to make a decision, but also to “usurp the constitutional power and discretion of the Redistricting Commission and compel the adoption of their own redistricting plan.”
The Ohio Supreme Court is fielding multiple lawsuits, and issues within the lawsuits, against maps approved by the commission
A new Congressional map was approved by the ORC earlier this month, but the state is still awaiting a ruling on its validity, despite moving forward with the May 3 primary using this map. Challengers of the map are also asking the court to reinstate the commission as a whole in the lawsuit, after the court dismissed the entity, choosing to go forward with the case against LaRose and other commission members in their individual capacities.
The third revision of legislative maps were approved by the commission at the end of February, but the state’s highest court has yet to rule on their constitutionality either.
Democrats on the redistricting commission disagree with the GOP stance on the issue, and have done what they can to urge fellow lawmakers to rely on the high court.
“This is a different time; the court has already ruled that plans for both the congressional and the state legislative maps are not acceptable, and they still have jurisdiction,” state Sen. Vernon Sykes, D-Akron, told the OCJ.
In terms of upholding the law, Brown argues the Ohio Supreme Court has “concurrent jurisdiction” over the federal constitution, meaning they have to keep up with federal law as they make their own decisions.
“The result of that is that the Ohio Supreme Court, as a matter of federal constitutional law, does have the authority to, at the end, if necessary, draw the general assembly’s map,” Brown said.
In terms of a congressional map, Brown says it’s a bit trickier as to whether the state supreme court can draw the districts, but federal law does include a “default” if no districts are viable, meaning congressional districts could be voted on as “at-large” districts in what is seen as a worst-case scenario situation.
Lawsuits and ‘uncharted territory’
Court challengers in the legislative and congressional redistricting cases have given multiple remedies to continuing the cycle of returning the maps to the ORC; however, none of them lay the responsibility solely on the General Assembly.
Some say the issue should now be under the state supreme court’s purview, and others say the commission should get the maps back with directives to change the maps that are more specific, targeting certain districts for changes, not the map as a whole.
Another option posed by the litigants was the adoption of a “special master,” who would be an expert chosen by the supreme court to walk alongside map-drawers, and make sure the maps are drawn to follow every aspect of the constitution.
Ohio State University professor Dr. Richard Gunther, who was also part of the team that drafted the Article 11 of the state constitution laying out the redistricting process this time around, said a special master isn’t a bad idea as the process reaches “uncharted territory.”
“We never anticipated that the final stages of this process would be in essence pretty tied up with behavior that I never anticipated,” said Gunther, who spoke at the same Equal Districts Coalition event as Brown.
Gunther also took issue with arguments made by Huffman and Cupp after the congressional map was passed, in which they argued that because the process had been returned back to the ORC and couldn’t be done in the General Assembly, the provision of the constitution prohibiting partisan favoritism no longer needed to apply.
“That is preposterous,” Gunther said. “I can’t imagine how and why you can decide your own venue, and determine your own rules for making a decision that is otherwise so clear-cut in the Ohio Constitution.”
Whatever the redistricting commissions members’ justification for their actions thus far, Brown said putting up a front that the commission, or the state legislature for that matter, is somehow independent and free of following state and federal laws is not the answer.
“There’s no reason for sticking your tongue out at the Ohio Supreme Court and just saying you’re not going to do it,” Brown said. “That is dangerous. That’s extremely dangerous in a system like ours.”
A federal lawsuit is also on the docket regarding redistricting. This time, Republican Ohio voters, specifically some leaders of the anti-abortion movement in the state, are suing to allow approved maps to be used, and to force the process out of the Ohio Supreme Court’s hands and into a three-judge panel in U.S. District Court.
Judge Algenon Marbley just recently put a pause on the case as the court waits to see what the state’s high court will do with the maps. As the case is now, Marbley will be the one to decide whether the lawsuit continues, thus whether a three-judge panel will hear the arguments.
But Brown said a federal court officially taking up the issue would be a “last-ditch effort,” and something the U.S. Supreme Court has said shouldn’t happen unless absolutely necessary.
“Even if the federal court decided to get involved, which would be a last-ditch thing, chances are it would certify the question back to the Ohio Supreme Court anyway, and you’d wind up right where you started,” Brown said.
So far, no dice
The independent state legislative theory has been around for decades, but even with the new court cases bringing the topic back up, it hasn’t seen much success. Attorneys and political scientists who have watched the courts take up election and redistricting cases say that doesn’t mean it should be ignored.
Ben Geffen, an attorney with the Public Interest Law Center was part of the legal team fighting against gerrymandered maps in Pennsylvania this year and in the last redistricting cycle. Having experience with election law, he said the notion that state courts should be excluded from interpreting their own constitution when it comes to federal elections “is not a new idea.”
“The fact is that the U.S. Supreme Court has considered and rejected this theory multiple times over many, many decades,” Geffen told the OCJ.
What’s strange about this new movement in the theory is the Republican support for the idea, which would use federal laws to take away power from some state government branches, going against the conservative ideal of states’ rights.
“It’s kind of strange because usually you think of conservatives being more in favor of decentralized systems where state governments have autonomy, but in this case it’s the reverse, and it’s conservatives asking federal courts to ignore the history in this country,” Geffen said.
Geffen said it’s “awfully late in the game” for the impact of the theory to show up in the 2022 elections, but the 2024 elections may be another ballgame.
“It’s very possible that within the next year the U.S. Supreme Court may hear one of these cases,” Geffen said. “It’s troubling to me that there appears to be an appetite among some members of the U.S. Supreme Court in reopening settled precedent.”
The fact that redistricting itself is getting so much attention this time around, let alone the elections themselves, gives Geffen some hope that these “threats to the right to vote” won’t come along without a fight.
“Ten years ago when we’d tell people about redistricting, we’d get blank looks,” Geffen said. “It’s not something that happens in a smoke-filled room and people don’t know about it anymore. People are paying attention.”
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