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Dubious distinction for Ohio GOP leaders: Only ones in US to ignore a court order


Gov. Mike DeWine, illustrating how close Republicans and Democrats came to agreeing on a plan for new legislative maps before the process was blown up, despite what he says was his objection. (WSYX)
Gov. Mike DeWine, illustrating how close Republicans and Democrats came to agreeing on a plan for new legislative maps before the process was blown up, despite what he says was his objection. (WSYX)
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Somewhere along the way you learned how the American system of government was supposed to work.

Checks and balances. Three branches of government: executive, legislative, and judicial. And the judges get to decide whether the actions of the other two branches are legal.

This balance of powers faces heavy pressure during the process of redrawing new boundaries for congressional and legislative districts -- which takes place every 10 years after a new census.

Democrats and Republicans strenuously fight for the upper hand, because how the maps are drawn can shape which party holds the power for the ensuing decade. That's why people living in many states saw bitter court battles this year over proposals for new district lines.

Despite harsh rhetoric and outright rancor directed against judges who issued decisions the losing party didn't like, eventually those court orders were at least begrudgingly obeyed.

At least in every state but one: Ohio.

Except for the Buckeye State, "There isn’t a single state where a substantive court order has been ignored in redistricting," said Yurij Rudensky, senior counsel in the Brennan Center’s Democracy Program. The nonprofit works with New York University's law school.

Here's how Ohio achieved a national low

After witnessing the overt gerrymandering in previous redistricting efforts, a few years ago Ohio lawmakers easily approved a pair of state constitutional amendments to revamp how the lines were drawn, with the Ohio Supreme Court given the exclusive power to decide whether the plans passed legal muster. Ohio voters OK'd both measures by wide margins.

But those bipartisan kum-ba-yah sentiments evaporated once it became time to actually start drawing the new maps last year.

Long story short: Republicans who controlled the undertaking proposed numerous legislative and congressional plans. Democrats didn't agree to any of them. And the state Supreme Court, in a series of 4-3 rulings, rejected every one as violating the new constitutional provisions due to GOP gerrymandering. Republican Chief Justice Maureen O'Connor sided with the court's three Democrats in every decision.

Amid complaining and even threats to impeach O'Connor, the Republicans responded to each ruling with a revised plan -- although some of their new maps contained only slight changes from the ones deemed unconstitutional.

That pattern repeated itself until last summer, when the high court struck down the GOP's latest map for Ohio's 15 congressional districts. The court's July 19 order to the Ohio Redistricting Commission was clear:

“The commission may not ignore the legal defects in the original congressional-district plan that this court identified. Indeed, the commission has a constitutional duty to remedy the defects in the previous plan.”

However, for the first time, the Republican leaders DID ignore their "constitutional duty" cited in the ruling. And although the Supreme Court’s deadline for a remedy has long passed, these Republicans have not made even a token effort to fix the unconstitutionally gerrymandered congressional districts.

So this is where we stand in Ohio: The state Supreme Court -- the peak of the judicial branch -- has issued a direct order. And Gov. Mike DeWine, Senate President Matt Huffman and Speaker Bob Cupp -- the leaders of the executive and legislative branches -- refuse to follow that order. (Other redistricting commission members defying the court are the state's chief elections officer, Secretary of State Frank LaRose, and top financial officer, Auditor Keith Faber.)

DeWine deflects blame for violating Supreme Court order

WSYX ABC 6 On Your Side asked DeWine to explain this direct disobedience, but he deflected the blame:

"Well, there were legislators, Republican legislators, who wanted to take this into federal court," he said. "And that’s what they did."

Indeed they did. Republicans appealed the July state Supreme Court ruling to the U.S. Supreme Court in mid-October.

Cupp, a former Ohio Supreme Court justice, said the appeal puts a hold on Republicans' need to obey the July court order.

But he's missing a fundamental point, says Ohio State law professor Steven Huefner, a specialist in election law. Neither the federal nor the state supreme court has blocked -- or "stayed" -- the July order from remaining in effect while justices in Washington decide whether to hear the appeal.

"While that review is pending, they appear to just feel like they don’t need to do anything," Huefner said. "I think really, once they filed that appeal, they still needed to seek a stay of the Ohio Supreme Court decision.

"The provision in the (Ohio) Constitution simply says that at the point at which the Ohio Supreme Court has reviewed a particular map, the new map has to comply with whatever the court said was wrong with the first map."

Besides, Ohio Republicans are likely to lose their federal case, he said. Their appeal is similar to one made by North Carolina Republicans already heard by the U.S. Supreme Court. And while a ruling has not been issued, a majority of justices expressed skepticism about that GOP challenge during oral arguments this month. The lawyer handling the North Carolina case also is representing Ohio Republicans.

Another thing you might remember from your civics lessons long ago is that if you disobeyed an Ohio Supreme Court order, they would either be coming for your wallet or throwing you in the hoosegow.

DeWine was asked about that as well.

"The only answer I can give you is you’re under a separate court, they’re looking at a very serious constitutional issue which has been written about nationwide," the governor said. "It impacts ever state."

Chief justice: 'I didn't want ... a constitutional crisis'

O'Connor was asked the same question. She said an individual violating a court order is not the same as when a seven-member government body does.

"If you break the law, there’s going to be consequences," the chief justice said. "It’s the law -- you being held accountable for your own actions. What we’re dealing with is a commission. And their response when people talked to them about it is that it’s not one individual, it’s the commission.

"It’s almost like it’s an artificial entity. And therefore their argument would be you can’t hold the commission in contempt, when each one of them is just a facet of that commission."

That ultimate weapon of the judicial system, finding someone in contempt of court for violating its order, was not realistic, O'Connor said.

"Holding them in contempt would do no good," she said. "It would create something that I would consider to be a constitutional crisis. That’s never happened before.

"That’s not the solution, to hold them in contempt. And then what? I don’t have a force that would go over and handcuff them if they were found to be in contempt.

"Or levy or make fines or some other (punishment) –- it’s uncharted territory. And, as I said, I didn’t want the redistricting to turn into a constitutional crisis."

Even if Huefner is right and Ohio Republicans lose their appeal to the U.S. Supreme Court, they still may win because they have now run out the clock.

This whole dispute could soon be moot since the November election and the ensuing appointment of a new justice by DeWine led to a state court regarded as much more friendly to the governor and his fellow Republicans.

And despite what you learned in school about how the government is supposed to work, it perhaps simply won’t matter anymore that a court ruling was defied.

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