Analysis: Ohio GOP jumps on 'independent state legislature theory.' But they may not like what the Supreme Court has to say
When the two most powerful politicians in Ohio's Statehouse decided last week to take their beef with the state Supreme Court over congressional district maps to the U.S. Supreme Court, they may have forgotten a maxim from Lawyering 101:
Never ask a question unless you already know the answer.
Ohio Senate President Matt Huffman and Ohio House Speaker Robert Cupp are both lawyers in good standing; neither man has trouble wading through and understanding legalese.
But, by going to the U.S. Supreme Court to glom onto an ongoing case involving a redistricting dispute in North Carolina, the two leaders of the Ohio General Assembly are hanging their hats on an amorphous and dubious belief known as the independent state legislature theory.
The independent state legislature theory argues that state lawmakers have sole authority over issues related to federal elections and therefore those issues are not in a state supreme court’s jurisdiction.
They say that what a four-member majority of the Ohio Supreme Court did on July 19 in rejecting the Ohio GOP's latest version of a congressional district map was unconstitutional under a theory that no court, including the U.S. Supreme Court, has affirmed as being a real thing.
Huffman and Cupp want the U.S. Supreme Court to rule that state courts — even a state supreme court — can't stop the legislature from doing what it wants, when it wants.
The statement released last Friday by Cupp and Huffman argued that "while many believe that the Ohio Supreme Court majority misinterpreted state law, there is also the broader concern that the court assumed a role the federal constitution does not permit it to exercise. This is a matter that needs resolution by our nation’s highest court.”
The Republican legislative leaders said their argument is based on the Elections Clause of the U.S. Constitution, which says, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”
David Pepper, the former Ohio Democratic Party chairman who teaches voting rights at the University of Cincinnati College of Law, says the Cupp-Huffman argument is not only wrong, but arrogant.
The manner of drawing state legislative and congressional district lines was set out in the 2015 and 2019 Ohio Constitutional amendments passed overwhelmingly by Ohio voters, Pepper said.
"The Ohio Supreme Court has had the authority to review these maps all along," Pepper said. "What Huffman is really saying is, 'I don't need to follow your (state) constitution because I am so powerful.' "
"Early voting has already begun and we are literally voting now for Congress and the state legislature that have been declared unconstitutional by the Ohio Supreme Court," Pepper said.
Nonetheless, Huffman and Cupp will forge ahead with their attempt to jump in on the North Carolina case and, they hope, get the Ohio Supreme Court off their backs once and for all.
They seem to have faith that a U.S. Supreme Court with a conservative majority, appointed by Republican presidents, will see things their way.
But the Ohio Statehouse power duo — both from little ol' Lima, Ohio — may not have reckoned on a 2019 U.S. Supreme Court case called Rucho v. Common Cause, a landmark case out of Florida involving partisan gerrymandering.
A 5-4 majority in Rucho decided that while gerrymandering might be "inconsistent with democratic principles" the justices said federal courts may not review such cases.
The majority opinion, written by Chief Justice John Roberts, an appointee of President George W. Bush, said that while there is no "fair districts" amendment to the U.S. Constitution, "provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply."
Which is exactly what the Ohio Supreme Court, armed with a state constitutional amendment, has been doing.
Four other justices signed on to this ruling, all from the conservative wing of the court and appointed by Republican presidents: Clarence Thomas (Bush 41), Samuel Alito (Bush 43), Neil Gorsuch (Trump) and Brett Kavanaugh (Trump).
Do the two guys from Lima really expect this U.S. Supreme Court to do a complete U-turn and reverse its own decision from only three years ago?
Sorry, folks, we were just pulling your leg back in 2019. We don't really think state courts have anything to say about gerrymandering. Sorry for the inconvenience!
Don't hold your breath, fellas. You'd better just hope you come out of the election three weeks from now with a friendlier Ohio Supreme Court.