February 12, 2013
JULIE CARR SMYTH
COLUMBUS — Justices asked tough questions of both sides Tuesday as they weighed a case that seeks to scrap Ohio’s newly drawn legislative map on the premise it was gerrymandered to favor Republicans.
Lawyers sparring before the Ohio Supreme Court disagreed over the constitutionality of the new lines and the process by which they were drawn. The court must now make a ruling in the case, though it has said its decision will be timed not to impact the 2012 presidential race.
Kevin Hamilton, representing Democrats who brought the challenge on behalf of a group of voters, said the five-member panel charged with drawing the new map intentionally sought political advantage as prohibited in the Constitution. That panel, the state Apportionment Board, is populated with four Republicans and one Democrat.
“The record is rife with evidence that the board took into account political considerations, adding portion of counties that didn’t need to be split, for the purpose of assisting or increasing partisan advantage,” Hamilton told the court during oral arguments.
E. Mark Braden, an attorney for the board’s Republican majority, said the state Constitution only asks that the board consider minimizing county, township, city and precinct splits — but it doesn’t contain an absolute rule as in some other states, such as Pennsylvania.
“Absolutely one has to look at keeping counties whole, but it’s only part of a mosaic of other provisions that one has to look at,” he told the court.
The litigation says the maps of 99 House and 33 Senate districts split cities, counties and other community units more than 250 times, seeking political advantage for GOP candidates. Hamilton said more neutral maps were produced that split only 30, rather than 50 counties.
Justice Judith Lanzinger questioned Hamilton’s position that Ohio’s Constitution was firmly against splitting communities.
Justice Paul Pfeifer asked whether the Constitution specifically prohibits maps that advantage one party over the other.
“There’s a fair amount of evidence, and it’s no surprise, that Apportionment Board consultants attempted to draw the map in a fashion that would advantage their political party. There’s no reference, or no prohibition or guidance, in the Constitution that prohibits that effort? Or is there?”
Hamilton said “the very structure of the Constitution” stands against gerrymandering. Braden said the duty to minimize jurisdictional splits “is not in Ohio law.”
“The actions of the Apportionment Board, both its process and its plan, are totally consistent with 40 years of precedent,” he said, arguing “there’s not one line in their briefs that shows any inconsistency.”
Pfeifer retorted: “Is that your argument? They ignored the mandate of the Constitution before, so it’s OK to ignore it now?”
No, said Braden, but “there’s an important historical precedent that the court needs to consider.”
The Democrats’ complaint also alleges violations of the state open-meetings law occurred during their creation. Court filings include accounts of majority Republicans who controlled the process conducting map-making work in a secret hotel room near the Statehouse but out of view of the public.
Justice Terrence O’Donnell questioned why the suit named only the Apportionment Board’s four Republican members — Gov. John Kasich, Auditor David Yost, Secretary of State Jon Husted and Senate President Tom Niehaus — but not Democratic member Armond Budish, the Ohio House minority leader.
He said no previous challenge to a legislative map omitted a member of the board. Hamilton said Budish objected to the plan so was not listed.
The Apportionment Board voted 4-1 along party lines in the fall to accept the new map. It was filed with Husted’s office in September and is intended to be in place through 2021.
Ohio redraws legislative districts every 10 years to reflect population shifts identified in the U.S. census.
Republicans and Democrats were given similar sums of taxpayer money to cover supplies, software, office space and consulting in what’s called the apportionment process. In a separate proceeding, Republicans have questioned the propriety of how Democrats spent some of their money.
The seven-member Supreme Court is made up of six Republicans and one Democrat.