Ohio remap dispute churns toward legal showdown

GOP, key Dem's views differ on possible court intervention

10/23/2011

COLUMBUS -- Republicans repeatedly have warned that the Statehouse stalemate over congressional district lines could place pencil and eraser, or at least the computer mouse, in the hands of unelected federal judges, possibly even from outside Ohio.

But Ohio Democratic Party Chairman Chris Redfern, who is preparing a petition drive to put a GOP-drawn map on next year's ballot, said he doesn't fear court intervention. "It couldn't get any worse," he said, referring to the map that, at least on paper, looks like it would establish 12 safe or leaning-Republican districts and four solidly Democratic districts.

Talks continue as House Republicans hope to peel off enough Democratic votes by making some minor changes to their existing map that would bolster minority voting clout in a handful of districts. They would need a minimum of seven Democratic votes to achieve a super-majority of 66 votes to allow the map to take effect immediately and head off a referendum at the pass.

No deal was immediately struck as members of the Ohio Legislative Black Caucus largely stood firm with the Democratic Party as a whole in presenting their demands, which include reuniting all of the city of Toledo into one district.

Should the stalemate continue and Ohio march toward a referendum on the map that wouldn't appear on the ballot for more than a year, long after the election process for 2012 congressional elections would begin, the likelihood that a state or federal court would intervene increases.

Democrats have until late December to submit at least 231,147 valid signatures of registered voters to the secretary of state's office to put the question on the November, 2012, ballot.

The stalemate claimed its first casualty last week: Ohio's early primary for president, vice president, U.S. House of Representatives, and political party delegates. Those contests were postponed until June 12 because they are tied to congressional district lines.

Races for local offices, U.S. Senate, state House and Senate, and Ohio Supreme Court will remain as scheduled on March 6.

Ironically, the earlier presidential primary -- the primary is held in May during non-presidential years -- was created to give Ohio a greater voice in selecting presidential nominees. Four years ago, John McCain's victory in March in Ohio helped hand him the GOP nomination. His chief opponent, Mike Huckabee, dropped out of the race after the votes were counted.

While Democrats and Republicans disagreed over splitting the primary, both largely agreed that a delay was necessary to buy time to deal with the congressional map.

"That's the intent [of the referendum], to make sure the process doesn't move forward and that the federal court draws these maps instead of us," said Rep. Matt Huffman (R., Lima). "That's unacceptable to me."

Mr. Redfern said there's a reason why Republicans don't want to go to court.

"They know they got a bad map. Is any federal judge going to let Jim Jordan represent downtown Toledo?" he asked with a laugh.

The Republican-controlled Ohio General Assembly didn't get around to finalizing congressional districts following the 2000 U.S. Census until late January, 2002, but the nonpresidential primary that year was held in May.

Should no compromise be reached and the issue is punted to a court, state or federal depending on the issues raised, the judge or judges would have several options, including imposing their own map.

"The courts could see themselves stepping in to protect the constitutional right of one person, one vote," said Edward Foley, director of election law at Ohio State University's Moritz College of Law. "They could say, 'We've got an election in June, and there's got to be a valid map until at least after November, 2012.' Then the legislature could go back and redraw the map."

But don't expect the judge to draw his own.

"If you envision a judge sitting at a computer drawing lines, that is less likely how it would happen," Mr. Foley said. "He would probably appoint a special master, which has been done in the past. He will try to have a reputation of neutrality. He won't want to be seen favoring one party or the other when they do this.

"The court may entertain submissions both from the parties and public," he said. "Once in this terrain, the court would have what are called equitable powers because this would be seen as an emergency situation where all bets are off."

There has been some talk of having candidates run at large instead of in districts, but serious questions have been raised as to whether that would be legal.

"Any state would be skating on thin ice if it tried at-large districting," Mr. Foley said. "It would be an invitation to litigation for anybody who didn't like it. It's fair to say that the reading of the relevant U.S. Supreme Court precedent is at best skeptical of at-large districting, and it might be that the U.S. Supreme Court completely closes the door to it."

While the new map appears to create a 12-4 Republican congressional majority, Ohio as a whole is a swing state as evidenced by its wide swings in recent years back and forth for president and statewide offices.

Republicans lost their first battle with a court that is 6-1 Republican. It was the Ohio Supreme Court that unanimously held that the GOP map can be subjected to voter referendum, despite a last-minute attempt to avoid that by attaching an appropriation to the bill.

Republicans have particularly warned that the issue could be decided by Cincinnati-based U.S. 6th Circuit Court of Appeals, which, in addition to Ohio, consists of judges from Michigan, Kentucky, and Tennessee.

Because of Ohio's slow population growth over the last decade, the state will lose two of its 18 seats in the U.S. House of Representatives. The situation sets up the loss of one Democratic incumbent by putting U.S. Reps. Marcy Kaptur (D., Toledo) and Dennis Kucinich (D., Cleveland) together in a new 9th District snaking along Lake Erie from Toledo to Cleveland.

It also sacrifices one Republican incumbent by pitting U.S. Reps. Mike Turner (R., Dayton) and Steve Austria (R., Beavercreek) against each other in the same southwestern 10th District.

Contact Jim Provance at: jprovance@theblade.com or 614-221-0496.