Ohio GOP legislative leaders claim state courts cannot rule on regulation of congressional elections

Republican leaders in the Ohio Legislature are invoking what has been considered a fringe doctrine — known as the independent state legislature theory — to argue that the Ohio Supreme Court is not allowed to enforce the state constitution if it limits the legislature’s power to regulate congressional elections.

House Speaker Bob Cupp (R-Lima) and Senate President Matt Huffman (R-Lima) were among the leaders who filed the appeal in the U.S. Supreme Court. They’re fighting the Ohio Supreme Court’s ruling that the Republican-drawn congressional district map was unconstitutional.

Cupp and Huffman cite a line in the U.S. Constitution’s elections clause which says “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.”

In their appeal to the U.S. Supreme Court, Cupp and Huffman said this means “courts cannot enforce state constitutional provisions limiting the power to regulate congressional elections that the [U.S.] Constitution vests in state legislatures.”

They wrote the same can be said for courts that cannot enforce “state constitutional provisions limiting individual rights guaranteed by the United States Constitution,” citing the landmark marriage equality case Obergefell v. Hodges.

The Ohio Supreme Court ruled twice that the GOP-drawn congressional district map was in violation of the state constitution.

In their appeal, the Republican legislative leaders said there are three main questions to be answered:

• “Can state courts enforce state constitutional limits on a state legislature’s power to regulate congressional elections?”
• “Can state courts dictate the outcomes that congressional district maps must achieve?"
• “Can they craft extra-constitutional rules that state legislatures must follow when drawing such maps?”

The independent state legislature theory has been known as a fringe doctrine, due in part by the possible outcomes of the argument.

In a report written for the Brennan Center for Justice, Ethan Herenstein and Thomas Wolf wrote that proponents of the theory reject the traditional reading of the elections clause “insisting that these clauses give state legislatures exclusive and near-absolute power to regulate federal elections.”

Herenstein and Wolf said the result, when it comes to federal elections, would mean “legislators would be free to violate the state constitution and state courts couldn’t stop them.”

The Ohio appeal is similar to a U.S. Supreme Court appeal filed by Republican legislative leaders in North Carolina.

In that case (Moore v. Harper), the North Carolina Superior Court ruled that the GOP-drawn congressional map was unconstitutional. But in that case, the superior court drafted a new map which was adopted for the elections.

Jen Miller, executive director for the League of Women Voters of Ohio, said Ohio’s state constitution already gives the state legislature the authority to draw maps. And the supreme court has not tried to draw a map.

Miller noted that Huffman helped craft the constitutional amendment that allowed the supreme court to have oversight over redistricting.

“So, for them to now say that the Ohio Supreme Court doesn't have the authority is just very creative legalistic acrobatics to defend their bad behavior,” said Miller.

In response to the argument that Ohio’s constitution already gives the legislature sole authority to draw maps, communications director for the Senate Majority Caucus John Fortney said, “[the] Ohio case involves a federal constitutional issue which is by default representation in the United States Congress, and the base argument that the Ohio Supreme Court majority did not follow the plain language of the Constitutional Amendment passed by the voters.”

The Ohio appeal references the North Carolina case at several points in the filing.

Cupp and Huffman’s appeal said, “Hearing this case alongside Moore would allow the court to fully address whether state courts can enforce substantive limits on a state legislature’s authority to regulate congressional elections.”

It went on to say that the U.S. Supreme Court could determine whether the state court relies on general state constitutional provisions, as was the case in North Carolina, or more specific constitutional provisions, such as the rulings in Ohio’s case.

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