COLUMBUS, Ohio (CN) — The Ohio Supreme Court heard oral arguments Wednesday from organizations and voters challenging legislative maps approved by GOP lawmakers on the Ohio Redistricting Commission, claiming they unfairly favor Republicans.
The League of Women Voters, the Ohio Organizing Collaborative and a group of citizens all filed suits against the commission, Governor Michael DeWine, Secretary of State Frank LaRose, State Auditor Keith Faber and other officials alleging the new maps violate the Ohio Voting Rights Act.
The lawsuit filed by the League of Women Voters claims that the newly drawn district lines brazenly manipulate the district lines to ensure an “extreme partisan advantage that dishonors voters of the state” and locks in Republican supermajorities in both chambers.
Six years ago, Ohio voters overwhelmingly approved an amendment to the state’s constitution to end partisan redistricting, in response to secretive gerrymandering that had gone on for years. The purpose of the amendment, according to the 2015 ballot language presented to voters, was to “end the partisan process for drawing Ohio House and Senate districts, and replace it with a bipartisan process with the goal of having district boundaries that are more compact and politically competitive.”
The new maps give favor to GOP candidates, with 67% of the Ohio House districts and 69% of the Senate districts known to vote Republican in past elections. The Ohio Redistricting Commission admitted that Republicans have garnered only about 55% of votes in statewide elections in the last decade, according to the League of Women Voters complaint.
Republican state lawmakers hang their hats on the wording of the amendment, which says in Section 6 that the commission “shall attempt to draw the General Assembly district plan that meets all these standards,” arguing that "shall attempt" means that commission may not meet those standards.
Arguing first for the Ohio League of Women Voters before the state high court Tuesday, ACLU lawyer Freda J. Levinson stated that the commission did not follow guidelines in Article XI of the state constitution.
"The only way the enacted plan can stand is if the respondents convince [the justices] that Section 6 is full of empty words they are free to ignore," she said.
After being asked about the lack of wording for a standard of proof by Justice Patrick Fisher, Levinson turned to the phrase "shall attempt" in Section 6.
"The word 'shall' is mandatory, and the word 'attempt' does not diminish its mandatory force here," she argued.
Chief Justice Maureen O'Connor questioned her on the words.
"The argument that we I'm sure will hear is that Section 6 is aspirational. It's not with the same force and effect of the provisions in this Constitutional Amendment, that it's kind of overarching with no remedy to address. That's what I'm going to hear," O'Connor said.
Levenson responded, "People call it aspirational because the word attempt is in there, but the word attempt can be very clearly understood to mean the standards of Section 6 are to be applied unless you have an excuse for not meeting them."
Attorney Brian Sutherland argued next on behalf of the Ohio Organizing Committee, saying the new legislative maps also violate Section 3 of the state constitution, which guarantees equal protection.
"The court should look at political party representation in the General Assembly and assess whether differences in representation caused by the districting plan are those that make a material difference in the ability of a political party to influence and and enact legislation," Sutherland said. "I'm talking here about the difference in supermajority representation, simple majority representation and only minority representation in the legislature."
He added, "Section 3 basically says don't treat voters unequally under the line drawing rules."
O'Connor then asked, "Theoretically, is a supermajority, in your way of thinking, unconstitutional in the representation of voters?"
"It would depend on the statewide vote," Sutherland replied, going on to say a different voter makeup could justify a supermajority, but that in Ohio lawmakers "cracked and packed voters into districts," which unfairly created the likely supermajority.
"It doesn't take a political scientist to know that if you pack voters into one district they miss out on opportunities to participate in the General Assembly," he said.
On the other side, attorney Phillip Strach of Nelson Mullins argued on behalf of Senate President Matt Huffman and House Speaker Robert Cupp, two Republican legislators on the Ohio Redistricting Commission. Strach argued that they complied with the Ohio Constitution.
"We believe that Section 6 is is most properly understood as a carrot and stick framework of Article XI. The stick is Section 6, but it doesn't apply if there is a 10-year map," he said, adding that the carrot is the 10-year map, with the other option being a four-year map.
"What's the incentive for the minority party under that?" O'Connor asked.
"To get as good a deal as they can get," Strach answered. "They don't have to worry about the uncertainty of the four-year map."
Several justices brought up emails from LaRose and DeWine, both Republicans, who had issues with the map.
"This plan is asinine," the secretary of state said in an email, according to O'Connor. The chief justice then paraphrased the governor, saying that DeWine's emails basically said "in my heart, they could have come up with a more constitutional plan."
Strach turned back to the wording in Section 6.
“‘Attempt’ means basically to try. ’Attempt’ clearly modifies ‘shall.' We believe that in this particular case that the process of negotiating and compromise, coming down from 68 to 62 [Republican districts] is what it means to try," he said.
Attorney Erik Clark then argued in defense of the Ohio Redistricting Commission, reiterating the same arguments as Strach about the word "attempt." He also argued that another section of the amendment does not grant the court remedial power.
In rebuttal arguments, Ben Stafford, who represented the individual plaintiffs, argued that the maps violate the Ohio Constitution by failing to comply with the voter-approved ban on partisan gerrymandering.
"The [company hired as] map drawers were not directed to comply with Section 6. No attempt was made to comply with Section 6,. Republicans attempted to get as many seats as possible that Democrats would stomach and sign off on," Stafford said.
The court is expected to issue its decision in the next few weeks.
The deadline for filing to paperwork to run in 2022 elections is Feb. 2.