CINCINNATI (CN) – Republican lawmakers argued before the Sixth Circuit on Wednesday that a trial court’s decision to compel production of sensitive documents during a challenge to Ohio’s electoral map violated their First Amendment rights.
The appeal stems from a May 2019 decision in which a three-judge panel found Ohio’s voting map is an unconstitutional gerrymander, but does not challenge the merits of that ruling, which was ultimately vacated by the U.S. Supreme Court after its decision in Rucho v. Common Cause.
Rather, the Republican National Committee and Adam Kincaid, executive director of the National Republican Redistricting Trust, claim they were forced to hand over privileged documents that detailed “the internal workings of the National Republican Congressional Committee, a membership organization comprised of every elected Republican in the United States House of Representatives.”
The RNC claims the Ohio A. Philip Randolph Institute and its co-plaintiffs did not establish a “crucial need” for the documents they requested and were ultimately granted access to by the trial court.
A destruction order was issued by the district court after the trial, and although the voters’ rights groups confirmed they complied with the order, the RNC nevertheless appealed to the Sixth Circuit for relief.
In their brief to the Cincinnati-based appeals court, the RNC and Kincaid argued they will continue to suffer an ongoing harm as long as they remain unaware of the identities of the people who had access to the documents, which they claim could be used in future gerrymandering cases.
Attorney Jason Torchinsky argued on behalf of the RNC on Wednesday and said the district court lacked jurisdiction to compel production of the documents.
U.S. Circuit Judge Jeffrey Sutton, a George W. Bush appointee, immediately interrupted the attorney and asked why the matter was not mooted when the case was dismissed following the Supreme Court’s decision in Rucho.
Sutton asked what specific documents the RNC was concerned about, as many of the files became public record when they were introduced at trial.
The attorney responded that he wasn’t at the trial and was unaware of which documents had not been introduced, and was promptly rebuffed by Sutton.
“I don’t care,” the judge responded. “Talk to people who were [at the trial].”
Unfazed, Torchinsky said his clients care about “strategic internal information” contained in the documents that could be used in future trials.
U.S. District Court Judge Richard Griffin, also a George W. Bush appointee, interrupted and echoed his colleague’s sentiments about mootness.
“I’m wondering what the heck we are doing here,” Griffin said, while later adding that the Sixth Circuit deals with “live cases.”
Torchinsky was hounded by the panel throughout his argument, and was repeatedly pressed by Sutton for specific documents to support his argument.
“You’d make it so much easier on us,” Sutton told the attorney, “if you just point to one document that’s not public. … You want to take us over mountains and through swamps.”
Torchinsky tried to explain with a hypothetical analogy in which Coca-Cola was forced to divulge its secret recipe to Pepsi, but Sutton ambushed him.
“Slow down,” he said, “and say sensible things.”
Attorney Theresa Lee argued on behalf of the Ohio A. Philip Randolph Institute, focusing on the mootness of the case.
Lee said the plaintiffs complied with the destruction order, and called a potential ruling vacating the discovery order an “extreme option” that would cause harm not only to her clients, but the public at large.
In an interview after the hearing, Lee repeated that the case is moot following the Rucho decision.
Torchinsky could not be reached for comment.
Senior U.S. Circuit Judge Ralph Guy Jr., a Ronald Reagan appointee, joined the panel by telephone.
No timetable has been set for the court’s decision.
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