The following article was originally published in the Ohio Capital Journal and published on News5Cleveland.com under a content-sharing agreement.
As the U.S. Supreme Court prepares to consider a redistricting case with implications that could be felt in Ohio, national groups with chapters who have fought Ohio’s unconstitutional district maps are hoping to make their mark.
The League of Women Voters and their chapters from every state and the District of Columbia filed an amicus, or “friends of the court” brief — a filing submitted by parties who aren’t directly involved in the case — with the U.S. Supreme Court in the Moore v. Harper case, which will determine the power of the state courts to regulate elections, which are typically established by the state’s legislature.
Both the League of Women Voters and the Brennan Center for Justice at NYU Law attempt to fight against the so-called “independent state legislature theory” in their briefs, which the LWV said “would have far-reaching implications for the future of American democracy.”
“The theory advanced in Moore calls for a legal revolution that would chop up and alternate rules by type of election, ushering in chaos and confusion for poll workers and voters,” according to Jon Sherman, litigation director and senior counsel for Fair Elections Center, who represents the League.
The theory, which has been shot down historically by the court, argues that the legislature holds sole power to establish or alter anything to do with elections. That language has popped up in Ohio’s redistricting process, as legislative leaders like Senate President Matt Huffman and House Speaker Bob Cupp have argued against intervention or punishment via the Ohio Supreme Court for missing redistricting-related deadlines and potentially being held in contempt.
The leaders have made comments throughout the process of congressional and legislative district map-drawing that the Ohio Redistricting Commission conducted their “legislative duty,” whether or not the state supreme court felt the maps were constitutional.
They also take issue with the judicial branch having a role in election-related determinations in their appeal of Ohio’s U.S. Congressional district map to the U.S. Supreme Court.
Along with LWV chapter leaders from across the country, Ohio’s Jen Miller said the judicial intervention has long been an important part of the state’s process of getting things done and done well.
“We rely on state courts to uphold voters’ rights to free, fair, and meaningful elections, and the Supreme Court should not disturb this system of checks and balances,” Miller said.
The Brennan Center’s brief stretched over hundreds of state constitutional provisions, regulations, and policies in the country that could be impacted by the theory, if the U.S. Supreme Court decides in favor of state legislatures over state supreme courts.
“The laws and practices it would endanger range from the right to a secret ballot in many state constitutions to independent redistricting commissions in Arizona and California,” the brief stated. “From ranked-choice voting in Alaska and Maine to automatic voter registration in Michigan and Nevada, from detailed regulations of voter list maintenance in Indiana and Iowa to voting machine testing procedures in Montana and Ohio.”
The Ohio chapter of the league andthe Brennan Center have both had their hands in lawsuits to invalidate legislative and Congressional maps in the state. Through one lawsuit or another, all of the maps adopted by the Ohio Redistricting Commission have been deemed unconstitutional.
The Conference of Chief Justices, which represents the heads of state supreme courts across the nation, also filed an amicus brief in Moore v. Harper against the independent state legislature theory.
The court has scheduled an oral argument in the case for Dec. 7.
Ohio will revisit redistricting after the November General Election, after a federal court intervened to allow the unconstitutional legislative map adopted by the ORC to go forward for the 2022 election. The congressional map, also deemed unconstitutional, will also stand for the 2022 election, before court challenges can resolve.
