Contempt not appropriate in redistricting cases, GOP says

DeWine: Contempt only benefits “out-of-state partisan special interest groups”

By: - April 5, 2022 3:50 am

House Speaker Bob Cupp, center right, and state Sen. Vernon Sykes, far right, co-chairs of the Ohio Redistricting Commission, speak to media. (Photo: Susan Tebben, OCJ)

The GOP members of the Ohio Redistricting Commission on Monday submitted their arguments against being held in contempt by the Ohio Supreme Court, claiming they did the work that was asked of them.

The commissioners, Secretary of State Frank LaRose, Senate President Matt Huffman, House Speaker Bob Cupp, Gov. Mike DeWine and Auditor Keith Faber, all painted a picture of a quickly-expiring clock and a lack of options when it came to filing a new legislative plan by the court-imposed deadline.

LaRose said he “voted for the only completed map before the commission,” and argues those challenging the maps “allege no contemptuous conduct committed by Secretary LaRose and he engaged in none.”

LaRose and three other members of the GOP contingent on the commission approved a tweaked version of the third map a few hours before the midnight deadline on March 28. The idea to bring up the third version of the maps came from Huffman, who introduced the idea the same day as the deadline.

Just after the maps were approved, independent mapmaker Dr. Douglas Johnson announced that plans he’d worked on with professor Michael McDonald for the last four days were complete.

“The purported alternative, the plan presented by ‘independent’ mapmakers…had not been thoroughly reviewed by members of the commission, did not allow for amendments, and in the opinions of several of the Republican members of the commission, suffered from numerous constitutional deficiencies,” attorneys for LaRose wrote.

The adopted plan was criticized by court challengers as being virtually identical to the last map, which was rejected by the state’s high court as being unduly partisan and completed under a process controlled by GOP leaders.

Democrats on the commission asked the night of the map’s adoption if the redistricting commission could be recessed to review the plan introduced by Huffman, which led to objections by commission leaders. They said there was no time to do so, as the plan had to be sent to the Secretary of State’s Office soon after the commission’s meeting.

LaRose claims, however, that the commission did its job by getting a map in by the deadline. He and the other GOP members of the commission also claim separation of powers doctrine prohibits the supreme court from finding them in contempt “for performing a legislative function.”

“In this matter, Secretary LaRose’s only pertinent conduct is that he engaged in legislative function by voting as a member of the commission for the fourth plan,” LaRose stated in his response to the court.

Cupp and Huffman, as they have in previous responses to the court, filed their arguments jointly, and emphasized that they followed the court’s order by meeting daily, developing map-drawing and mediation processes, hiring independent mapdrawers  and passing a plan by the deadline.

The court had also ordered the commission to pass an “entirely new map,” something Huffman agreed during the redistricting process was a requirement, and an order on which map challengers have hinged their arguments for findings of contempt, and for rejection of the newly adopted maps.

“The Republican Commission members did not ‘hijack’ the process or ‘stop’ working with the independent mapdrawers,” Huffman and Cupp’s attorneys wrote in their filing.

The legislative leaders said Johnson and McDonald “ran out of time” to draw a new map that met the court orders and constitutional requirements.

“Only after that became clear did the commission adopt the ‘failsafe’ plan that complies with the constitution,” Huffman and Cupp argued. “There is no contempt. Only a good faith effort to comply with this court’s orders.”

Gov. Mike DeWine reiterated the arguments of LaRose and the legislative leaders, but also blamed the Ohio Supreme Court for setting time requirements that “created two impossible choices, which, in the end, was no choice at all.”

“By any measure, the commission acted properly in not adopting the incomplete, unconstitutional maps,” Ohio Attorney General Dave Yost wrote, as attorney for DeWine. “The ‘end’ result sought here, the formation of Democratic strongholds, does not justify the ‘means’ – the trampling of constitutional requirements.”

In arguing against being held in contempt, the governor says the redistricting commission “is an independent legislative body that acts through deliberation and majority vote,” and, quoting a separate legal case, argues that “exercise of legislative discretion should not be inhibited by judicial interference or distorted by the fear of personal liability.”

“The only persons benefiting from any threatened contempt proceedings are the out-of-state partisan special interest groups who are now weaponizing litigation in an improper effort to thwart the will of Ohio voters, interfere with the legislative process, and unconstitutionally dilute opposition voters,” Yost wrote on behalf of DeWine.

Another argument made by GOP members of the commission is that individual members of the commission are not liable for the acts of other members, and therefore can’t be held in contempt, even as a voting member of the ORC.

Auditor Keith Faber, for example, said he “cannot on his own act on behalf of the Ohio Redistricting Commission to enact a General Assembly-district plan, and therefore, cannot be held individually in contempt,” according to arguments he filed with the court.

“Fundamentally, Auditor Faber is but one member of the seven-member Ohio Redistricting Commission and cannot compel the commission to do whatever it is he desires,” Faber’s attorneys wrote.

Faber was the only Republican member of the commission to vote against the fourth map, a vote he also made on the third version.

Democratic members of the commission took an expected and apologetic tone with the court, agreeing with those challenging the maps and asking for the court to hold the commission in contempt that the process was “once again hijacked by certain Republican commissioners.”

“The result is a patently unconstitutional fourth plan, which flaunts this court’s orders,” House Minority Leader Allison Russo and state Sen. Vernon Sykes said in their joint court filing.

Russo and Sykes said initially they thought the process was coming along in a collaborative way, led by a duo of independent mapdrawers, but then they say the Republican commissioners “returned to the playbook that yielded the first three maps this court rejected.”

The two Dem commission members asked in their filing that the court institute “strong, swift action,” without which “the obstructions of the Republican commissioners will prevail, rather than the constitution and the rule of law.”

“The will of the people of Ohio, through their constitution and system of judicial review, must prevail,” Russo and Sykes’ attorneys wrote.

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Susan Tebben
Susan Tebben

Susan Tebben is an award-winning journalist with a decade of experience covering Ohio news, including courts and crime, Appalachian social issues, government, education, diversity and culture. She has worked for The Newark Advocate, The Glasgow Daily Times, The Athens Messenger, and WOUB Public Media. She has also had work featured on National Public Radio.

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