CINCINNATI (CN) – Opening statements were delivered Monday to a three-judge panel tasked with determining whether Ohio lawmakers gerrymandered several congressional districts after the 2010 census to ensure they remained under Republican control.
The trial stems from a May 2018 lawsuit filed by 16 Democratic voters, the Ohio A. Philip Randolph Institute and the League of Women Voters of Ohio.
The voters, who are backed by the American Civil Liberties Union of Ohio, allege Republican lawmakers, including then-Governor John Kasich, used 2010 gains in the Legislature to pass an unconstitutional redistricting bill and pull off “one of the most egregious gerrymanders in recent history.”
According to the complaint, GOP officials used a Columbus hotel room codenamed “the bunker” to formulate their plans and develop what would eventually become House Bill 369.
The bill was passed in 2011 and “was designed to create an Ohio congressional delegation with a 12 to 4 Republican advantage – and lock it in for a decade,” according to the lawsuit.
A ruling late last year required the former chairman of the Republic State Leadership Committee to turn over emails and documents about the redistricting plan prior to Monday’s trial. Former chairman Ed Gillespie had claimed he could not recover emails sought by the voters because he forgot his AOL password, but the panel ordered him to use the “forgot password” function to retrieve the documents.
Monday’s opening statements started the clock on a time-limited trial that is expected to last 12 days and won’t exceed 70 hours.
The panel presiding over the trial is made up of U.S. Circuit Judge Karen Moore, a Bill Clinton appointee, and U.S. District Judges Timothy Black, a Barack Obama appointee, and Michael Watson, appointed by George W. Bush. Election district challenges go before a three-judge panel by default, and appeal petitions go directly to the U.S. Supreme Court.
Many of the individual plaintiffs were in attendance and sat in the seats normally reserved for members of the jury.
Attorney Robert Fram of the San Francisco firm Covington and Burling LLP addressed the panel on behalf of the voters.
Fram used a slideshow to highlight several pieces of evidence that will be presented throughout the trial, and repeatedly told the judges that the defendants’ goal was to “lock down 12 Republican seats.”
Using terminology allegedly coined by the team of then-Speaker of the House John Boehner, Fram said the “Franklin County sinkhole” was the centerpiece of the new legislative map. He said the term referred to “packing” Democratic voters into a new Franklin County district that would ensure several surrounding districts would remain under Republican control.
Fram then discussed an email written by RNC Redistricting Coordinator Tom Hofeller, in which downtown Columbus was referred to as “dog meat voting territory.”
“As hard as it is for me to read these words,” Fram said, “the ‘dog meat’ they’re talking about here, those are voters. … Those are citizens … [and] some of them are in the courtroom here today.”
Attorney Alora Thomas of the ACLU Foundation in New York City concluded the plaintiffs’ opening statement.
She told the panel that all of Ohio’s elections after the redrawn map was installed have resulted in a firm 12 to 4 Republican advantage in the state’s congressional districts.
Thomas presented several slides with expert statistical analysis to support her clients’ arguments, including one with a graph that shows Democrats will not gain additional seats until they win 51 percent of the vote statewide.
She concluded, however, by telling the judges the map can be fixed, and that her clients have proposed a “remedial map … designed to respond to the will of the Ohio voters.”
“Voters pick their representatives, and not the other way around,” she said.
Attorney Phil Strach of Ogletree Deakins represented the Republican state lawmakers in opening arguments.
“This case is indeed about democracy,” he said calling it an example of “textbook democracy in action.”
Strach said the plaintiffs “simply don’t like [the map] … and think the Democrats made a bad deal.”
The attorney admitted that “democracy is not perfect, and sometimes it is not pretty,” but he called the idea that Republicans somehow engineered a map to guarantee an advantage “pure poppycock.”
Strach told the panel the redrawn map was designed to protect incumbents from both parties, and said, “no one forced those Democrats to vote yes.”
He mentioned the 11th Congressional District in northeast Ohio as a specific example, saying its Democratic representative Marcia Fudge has never proposed a different shape for the district. Fudge has represented the 11th District since 2008.
The attorney urged the court not to “inject itself” into the muddy area of political polarization, and said “the final map was a political compromise.”
Attorney Mark Braden from the D.C. firm Baker and Hostetler gave a brief statement on behalf of several intervenor defendants.
Braden described the voters’ complaint as a “Goldilocks claim,” and said they are simply asking the court to decide the “right amount” of Democratic voters to include in each district.
The attorney echoed Strach’s warning at the conclusion of his opening statement.
“Don’t impale yourself on the thorns in the political thicket,” he advised the panel.
Aside from opening remarks made by Judge Black, the panel was silent throughout proceedings, save for one comment from Judge Watson.
Upon the conclusion of Strach’s statement, Watson reminded the attorney that none of the judges filed the lawsuit and they have not inserted themselves willingly into the litigation process.