For some time now, the Republican leadership of the Ohio General Assembly has been hoping the U.S. Supreme Court would give them what the Ohio Supreme Court would not: free rein to do whatever they want, whenever they want, when it comes to drawing congressional district lines.
But there were signs last week that the highest court in the land may not be in a mood to oblige.
You can bet the Ohio Republican Party establishment was watching very closely when the U.S. Supreme Court was hearing arguments in a North Carolina case called Moore v. Harper — a case that is almost a mirror image of the tooth-and-nail legal battle going on in Ohio for nearly all of 2022 over the drawing of legislative district lines.
After the result of the November election for the Ohio Supreme Court, where Republicans got a court majority that will be more friendly to their gerrymandering, the GOP legislative leaders may not care as much. But if the U.S. Supreme Court wants to give them absolute power over congressional redistricting, they won't turn up their noses at it.
After all, "absolute power" is sort of what the Ohio GOP is all about these days.
In Moore v. Harper, North Carolina voting rights advocates argue the GOP-led legislature is illegally trying to stymy the state supreme court from having a role to play in the drawing and approval of congressional district maps.
Any of this sound familiar to you, fellow Ohioans?
In the North Carolina case, the Republican leadership of the legislature is arguing that a rather amorphous belief known as the independent state legislature theory — which they say is rooted in the Elections Clause of the U.S. Constitution — prohibits state courts from interfering with the legislature in any way when it comes to mapping congressional districts.
The relevant portion of the Elections Clause says that state legislatures have the sole authority to set the "times, places and manner" of federal elections.
In other words, the Ohio Supreme Court — and state courts nationwide — would be cut out from reviewing maps.
Thaddeus Hoffmeister is a professor at the University of Dayton School of Law and a former mayor of the Cincinnati suburb of Wyoming. He thinks the U.S. Supreme Court would be "playing with fire" if it accepted the independent state legislature theory in total.
"Everyone, everything, in this country can be under the scrutiny of the law," Hoffmeister said. "No one is above the law. Our government is a set of checks and balances. And the courts are a necessary part of that."
But, in October, the leaders of the Ohio General assembly — Ohio Senate President Matt Huffman and then-Ohio House Speaker Bob Cupp — decided to glom on to the North Carolina case, after growing frustrated by yet another rejection by the Ohio Supreme Court of their congressional districting map.
The constitutional amendments passed overwhelmingly by Ohio voters in 2015 and 2018 to adopt the current method of drawing legislative district lines said the Ohio Supreme Court would be where disputes over maps would be settled.
They joined with North Carolina in calling for the U.S. Supreme Court to make the independent legislature theory the law of the land — something the high court has refused to do in the past, as recently as 2015 in an Arizona case.
But, based on what was said in the oral arguments before the court, three of the six conservatives on the court — Chief Justice John Roberts and Trump appointees Amy Coney Barrett and Brett M. Kavanaugh — may not be all in on the independent state legislature theory.
Roberts, when questioning the lawyer for the North Carolina legislators, pointed out that the legislature has already conceded that a governor could overrule the legislature through a veto, but the courts could not, if the independent state legislature theory applied.
"That's a pretty significant exception," Roberts told the lawyer. "It significantly undermines your argument."
The Supreme Court may not decide the case until near the end of its term in June. But if two of the three end up siding with the voting rights groups, you can kiss the independent state legislature theory goodbye; it disappears back into the mysterious fog from which it emerged.
Too bad for North Carolina's Republican legislators. Too bad for Ohio's Republican legislators.
But the GOP legislative leadership in Ohio has an ace in the hole. In November, Ohio voters gave them the Ohio Supreme Court they dreamed of.
Chief Justice Maureen O'Connor, a Republican, sided with the court's three Democrats on all of the cases where the four-member majority struck down state and federal district maps. But she couldn't run for re-election this year because of Ohio's judicial age limit law.
Justice Sharon Kennedy of Butler County ran for chief justice and won — a reliable vote for whatever new maps the GOP legislators submit. And so, too, will an as-yet unnamed justice to be appointed to Kennedy's seat by Republican Governor Mike DeWine.
That would make four votes on the seven-member court. A majority.
And the GOP legislators will get what they want.
Sort of a de facto version of an independent state legislature, you might say.
