Former U.S. attorney general warns of Ohio legislative attempts to cut court power

By: - September 13, 2023 4:55 am

Anti-gerrymandering protest. (Photo by Olivier Douliery, Getty Images.)

Some state legislatures are working to diminish the power of courts, imperiling the American system of checks and balances, former U.S. Attorney General Eric Holder wrote Tuesday. He used Ohio as exhibit A.

Holder, attorney general under President Barack Obama from 2009 to 2015, warned of an “alarming pattern” in an op-ed published by the State Court Report, a publication of the progressive Brennan Center for Justice. Holder argued that representatives of gerrymandered districts are trying to further rig the system so they can hang on to power.

“The norms that have governed the relationship between the judicial and legislative branches — and our larger system of checks and balances — are being upended,” Holder wrote. “State legislatures, particularly those that are heavily gerrymandered, are increasingly antagonistic toward their states’ supreme courts. The reason is simple. They do not want to be held to account by a coequal branch of government for violating state laws, constitutional principles, and basic fairness.”

Ohio’s legislature is heavily gerrymandered — meaning majority Republicans have drawn legislative and congressional districts so that they’re overrepresented compared to the outcomes of recent statewide elections. 

Majority parties in many states use sophisticated software to figure out how to draw districts so that opposition voters are “packed” into some and “cracked” into others to maximize the number of seats the majority party can win at election time. Critics say that in such processes, politicians are choosing their voters instead of voters picking them — and thus turning democratic processes upside down.

When it comes to partisan gerrymandering, Ohio is particularly extreme. Former President Donald Trump got less than 54% of the vote in 2020. But Republicans control 68% of seats in the state House, 78% in the state Senate and 66% of the state’s seats in the U.S. House of Representatives.

Perhaps owing to that gerrymandered, one-party power, the Ohio legislature also has recently been the scene of epic corruption

In his column Tuesday, Holder slammed Ohio GOP leaders not just for the way they drew legislative and congressional districts. He also criticized the way Republicans reacted when a bipartisan majority of the state Supreme Court rejected maps as violating anti-gerrymandering amendments to the state Constitution — amendments that passed with more than 70% of the vote.

“In 2021 and 2022, the Ohio Supreme Court struck down the Republican-drawn gerrymandered congressional and state legislative maps,” Holder wrote. “Republican state legislators and statewide elected officials backed the illegal maps and ignored the court’s order to redraw compliant districts not once, not twice, but seven times. It brought the state into uncharted waters. Ohioans were forced to vote using unconstitutionally gerrymandered districts in the 2022 election.”

Holder later added, “This blatant disregard for the rule of law has been disastrous for the state of democracy in Ohio. It serves as a warning for what will happen if there are no consequences for those who openly flout directives from a state’s judiciary.”

Writing in The New Yorker a year ago, journalist Jane Mayer made a similar point, writing that Ohio’s harsh abortion restrictions were an example of what such gerrymandering leads to. 

The article was titled “State Legislatures are Torching Democracy.” The subheadline said “Even in moderate places like Ohio, gerrymandering has let unchecked Republicans pass extremist laws that could never make it through Congress.”

In the op-ed that was published Tuesday, Holder took Republican leaders in Ohio, Pennsylvania, and Wisconsin to task for attacking the power of the judiciary in another way.

In Wisconsin, they are threatening to impeach a newly elected Supreme Court Justice for criticizing gerrymandering on the campaign trail and then refusing to step aside in a case over gerrymandering. 

The Associated Press on Monday reported that it has been common for Wisconsin Supreme Court candidates to comment on controversial issues that are likely to come before the court. But until now, none has been threatened with impeachment.

In Ohio, Republican officials last year threatened then-Chief Justice Maureen O’Connor with impeachment for voting with the court’s Democrats in ruling that Republican-drawn maps were unconstitutionally gerrymandered. Holder didn’t mention it, but Republicans even took down her portrait at state party headquarters because she didn’t vote the way they wanted in the gerrymandering dispute.

And in Pennsylvania, Holder wrote that “after the state supreme court struck down a gerrymandered congressional map in 2018, Republican legislators redoubled efforts to amend the state constitution to make, for the first time, state supreme court races dependent on regional electoral districts — as opposed to statewide consideration similar to how districts are drawn for Congress and state legislatures. The bill provided virtually no guardrails in the redistricting process, giving the legislature full power to gerrymander the judicial maps.”

State legislative Republicans also tried to end state judges’ power over redistricting almost completely. In Moore v Harper, North Carolina Republicans argued that state courts have next to no say in the districts drawn by gerrymandered legislatures. 

“Under the theory, state courts could not hold legislatures accountable for enacting voting legislation that violated their state’s constitution,” Holder wrote.

The U.S. Supreme Court rejected the argument, but Holder decried the fact that Republicans in multiple states — including Ohio — have continued to argue versions of the “independent state legislature” theory.

“In Ohio, Republican legislators filed an appeal arguing that constitutional amendments enacted by ballot measures, such as the redistricting reforms enshrined in the Ohio Constitution, are unenforceable,” Holder wrote.

The Buckeye State redistricting battle is far from over.

The Republican-dominated Redistricting Commission today (Wednesday) will again begin the process of drawing legislative maps. Critics are calling it a charade because the commission is giving itself nine days to draw the maps ahead of next year’s elections, despite having known for 16 months that the job needed to be done.

“Once again, the best advertisement for taking Ohio’s redistricting process out of the hands of elected officials is the Republican majority on the Ohio Redistricting Commission,” veteran political journalist Howard Wilkinson wrote Tuesday.

O’Connor is proposing just such an independent commission in the form of a constitutional amendment that she hopes to place on the November 2024 ballot. But in his op-ed, Holder faulted O’Connor and her Democratic colleagues for not holding Republicans in contempt when they ignored the court’s orders last year.

“Ohio is a warning sign for what will happen if courts do not assert their authority when a coequal branch of government refuses to comply with legitimate court decrees,” the nation’s former top lawman wrote. 

Holder said that in the current environment, courts need to protect their legitimacy by battling for it.

“Judges must be clear-eyed about their role and ignore legislatures’ attempts to influence their decisions,” he wrote. “If courts are to be neutral arbiters of the law in our democracy, they must be prepared to fight for their role.” 



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Marty Schladen
Marty Schladen

Marty Schladen has been a reporter for decades, working in Indiana, Texas and other places before returning to his native Ohio to work at The Columbus Dispatch in 2017. He's won state and national journalism awards for investigations into utility regulation, public corruption, the environment, prescription drug spending and other matters.