Support for the statewide broadcast of the state of Ohio comes from medical mutual, providing more than 1.4 million Ohioans peace of mind with a selection of health insurance plans online at Med Mutual dot com slash Ohio by the law offices of Porter, Wright, Morris and Arthur LLP, now with eight locations across the country.

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Moore and Porter Wright dot com and from the Ohio Education Association, representing 124,000 members who work to inspire their students to think creatively and experience the joy of learning online at OHEA.org It was a wild week for the Ohio Redistricting Commission as the May primary hangs in the balance, a new set of legislative maps, a federal lawsuit, an order for contempt of court hearing and a recusal by one of the Supreme Court justices.

We'll go over all that this week in the state of Ohio.

Welcome to the state of Ohio, I'm Karen Kasler.

It was the third try for the Ohio Redistricting Commission.

A third set of State House and Senate maps were approved by a four to three vote on Thursday.

And this time, one of the Republicans, auditor Keith Faber, broke from the rest and sided with the two Democrats against the maps.

These new maps would create 54 Republican and 45 Democratic seats in the House and 18 Republican and 15 Democratic seats in the Senate.

Democrats argued the number of Democratic seats that were in competitive margins.

But the party at a disadvantage and many potential races, and there were essentially no Republican seats that were tossups while Faber joined them in opposition.

That's not why he said he voted against the maps.

And so I had concerns with this map and to be consistent, I thought those concerns were consistent with the ones I had last week.

And for that reason, I couldn't support this map.

Is this map constitutional?

That's ultimately going to be a question for the court.

I have the same concerns about this map that I had last week, and so my short answer is I didn't think I could safely believe that this was constitutional and my interpretation of the Constitution.

You're the first person in this process to not stay with their party in a decision.

What does that mean to you?

I've always said this.

This to me, is it a Partizan process?

It's constitutional process.

And in that regard, I have been very clear in my interpretation of what the Constitution requires and what it means.

And I will continue to hold that position.

And look, I understand the desire to have a map.

I understand the desire to send a map to the Supreme Court that that they will uphold.

But again, I'm not going to.

I've said all along, I'm not going to violate my view of the Constitution merely to get them wrapped up.

Democratic co-chair Senator Vernon Sykes said on this show last week that work on the congressional map would also begin this week, and it did.

The commission also heard testimony on that, but no proposals came forward from either Democrats or Republicans on the panel, and without legal, legislative or congressional maps, it appears a single primary can't happen for all offices on May third.

According to the Republican secretary of state who's on the commission, the boards of elections can't conduct two elections.

At the same time, the voting machines are programed for one specific election.

All of the mechanisms of running that election are built on, you know, sort of the 90 days leading up to the election running the election certification.

And so what the boards of elections would have to do is complete one election before they begin the next one.

If the decision was made to have that bifurcated primary, then the boards of elections would have to go all the way through final certification, which is about three weeks after the election.

They'd have to go through post-election auditing, which is about four or five weeks after the election, and then they could begin the process of conducting a new election.

You can't sort of run the two simultaneously.

The elected officials on the commission are also staring down the possibility of being held in contempt of court.

This week, they explain in court filings with the Ohio Supreme Court why they should not be held in contempt.

House Speaker Bob Kopp and Senate President Matt Huffman said not only is a contempt finding inappropriate, but also quote In any event, it may be unnecessary as the speaker and the president anticipate the commission will vote on a new plan this week, which they did a week after saying they were at an impasse and approving new maps was impossible.

The commission itself responded through its lawyer, saying no members should be held in contempt because quote a new plan could be approved in the coming days, but also that again, quoting it appears each member acted in good faith in an effort to comply timely with the court's order.

Democratic co-chair Senator Vernon Sykes and House Minority Leader Allison Rousseau said in their response that they proposed maps on February 17th, but Republicans on the commission rejected them and that quote We apologize to the court for the commission's failures.

Russo said after the Thursday meeting that they're ready for the hearing.

I don't think that the maps that were passed this evening are going to please the court, and I don't think they will in any way help with those proceedings.

I feel that, you know, both myself and Senator Sykes have made it very clear that we've made multiple attempts to work together as a commission to pass constitutional maps.

So I feel good about making having those discussions in front of the justices and presenting that to the court.

But I do not think that they are going to look favorable on the work that this commission has done in the last couple of days.

Secretary of State Frank LaRose and Auditor Keith Faber, both Republicans, said they shouldn't be individually liable because the panel quote could not do in just ten days what it was previously unable to do in four months.

Adopt an Ohio General Assembly district plan that it and this court will approve and laws in favor said as just members of the commission, they can't enact the plan themselves.

And Republican Governor Mike DeWine, in a separate response, said something similar that he's just one of seven.

And can't order the commission to do anything.

But he pointed at the co-chairs Cop and Sykes as the ones who quote control the purse strings of the commission and can hire the map makers.

The wine also said he's in full compliance with his obligation as governor to send the maps to the commission.

The threat of contempt is unconstitutional under the separation of powers.

His son, just as Pat DeWine announced this week he would do as he promised and would step away from any contempt proceedings.

Since his father could face individual consequences.

But Justice DeWine said he was not recusing himself from the rest of the redistricting cases.

A hearing is set for Tuesday on the possibility of contempt.

The Republican Supreme Court justices Sharon Kennedy and Pat Fisher say they disagree with the order to call a hearing.

And as we record the show, a call is scheduled with U.S. District Judge Algernon Mobley on a lawsuit that seeks to move the legislative maps case from the Ohio Supreme Court to federal court.

I took all of this extraordinary action to the foremost expert on the Ohio Constitution, Steven Stein Glass, dean emeritus and professor emeritus at the Cleveland Marshall College of Law at Cleveland State University.

What are the practical implications for the commission and the commission members of potentially being held in contempt?

What does that even mean?

Well, first of all, when you talk about contempt, I think you have to distinguish civil from criminal contempt.

And what we're talking about is civil contempt.

Criminal contempt is a proceeding designed to punish someone for violating an order.

Tools, imprisonment, fines.

Civil contempt is designed to coerce to force compliance with the order.

The tools may be the same.

Jailing as a potential is a tool that could be used.

A fine could be used.

But in the civil arena, courts are really more inclined to look.

At the larger context in order to achieve compliance.

So it's really too narrow simply to say jail or fines.

There are other things that a court could do.

A court could easily listen to explanations in a particular case or even this case and say, Well, you did give us five different sets of reasons why you didn't comply.

Maybe we should have been more specific and they could provide greater specificity.

Looking at this particular case, I know that in this case, the attorney general let Senator Sykes and Leader Russo make appearances, and they suggested that the court actually take a look at their plan, not to adopt it, not to implement it.

Because, as I've said many times, the court doesn't have the authority to adopt its own plan.

But what they're trying to do is get the court to bless their plan.

I presume the court was going to do that could also look at other plans to bless them, to approve them, to declare them not unconstitutional, not implement them , but at least provide they're never mature.

So there are a lot of tools that the court has available in order to try to get to the end point, which, after all, is compliance with the state constitution.

And although it may sound a little rhetorical compliance with the will of the voters.

You say that the court can't bless an individual map, the court can't ordered the convention to pass one another.

I think he can bless, bless the map, if you will.

But I don't think you can order the implementation of a map.

It can.

It will require the adoption of a particular map, and that may seem like a very thin disk this distinction.

But you know, we in the law love thin distinctions.

Can the court draw the maps themselves?

Can they have a special master come in and draw the maps within the court?

The justices draw the maps toward what end?

I mean, this.

I mean, at the end of the day, the map that we have in Ohio will have to be approved by the Ohio Redistricting Commission in a theoretical sense.

They can hire a special master or they have authority to hire special masters for a broad range of purposes under the Supreme Court ruled that you and I discussed and specifically in an apportionment cases.

But it seems to me we're so far down the road here to bring in a new master to start drawing the play.

And I think that's not the role the court a court should or would want to play.

And before we move on to the discussion of the lawsuit to move this whole thing to federal court, I want to ask you, I mean, you've literally written the books on the Ohio Constitution and studied it for years in the Supreme Court.

You have, in this situation, contempt hearing for elected officials, just as Pat DeWine has recused himself from the contempt proceedings because they involve his father, Governor Mike DeWine, and there are potentially individual consequences on the members of the commission here.

The Republican justice, Sharon Kennedy, has now said she'll issue a dissent on the decision to hold the hearing.

Have you ever seen anything like this?

This is really a set of extraordinary circumstances, isn't it?

I think it's very, very unusual.

Let me just say one other thing about contempt that I was thinking about before we scheduled the interview.

I mean, what is contempt?

Well, you know, I'm a lawyer.

If I was a defendant in the legal malpractise case and the judge and jury ruled against me, that would be a stain on my record.

It would be a blemish if I was a doctor and I was found to have committed medical malpractise.

That wouldn't be a good thing to carry around with me.

You're a journalist, Karen.

I mean, if you were found liable for, I found having libel somebody.

And even if they were only awarded $1 in damages, the libel judgment would not be a great win for your resume.

And I think I think contempt against a public official is really and and by analogy, an example of professional governmental malpractise.

And I don't think any government official would want that kind of a blemish on their on their record.

I wouldn't want that part of their legacy.

So it's important.

Now maybe there's some people who don't care about the rule of law, but you know, it seems to me that the members of the commission, all of them are not in that boat.

They they may have different views what the law is about.

They may fight hard for their positions.

But I don't think any of them want to be put in this situation where they carry with them this notion that he or she doesn't respect the rule of law.

Let's talk a little bit about the lawsuit was filed by a group of voters sympathetic to Republicans who want to move this whole issue to federal courts.

What do those voters want to see happen and what happens next year?

What's the advantage of moving this case out of the state Supreme Court into the federal courts?

Well, I guess.

You know, I surmise they want a different decision maker because they're not getting the results they want with the decision maker they have in the state courts.

So if you can't get it from you look to be as far as what they're asking for.

Specifically, they're asking that a three judge district court be convened and they're asking that that three-judge court.

Adopt the plan that was rejected by the Ohio Supreme Court on February seven, the second redistricting plan, so that's specifically what they want .

Once again, it gets complicated.

three judge courts are very, very calm, and I can talk to you a little bit about how they work, if you would, if you'd like.

Sure.

OK. Well, three judge courts go back to the, I think, 1910, when a Three-Judge Court Act was adopted to prevent a single federal judge from in joining the operation of a state statute.

It was felt at the time that there was too much power for a single federal judge.

The Three-Judge Court Act.

Got pretty complex.

And in the 1970s, it was amended to limit its its its effect and all that was left standing in that was was apportionment or redistricting cases.

So if a suit is filed challenging a state apportionment plan, a state district game plan, a district court judge is supposed to request the sixth Circuit the.

In this case, the sixth Circuit, the chief judge of the circuit to convene a three judge court.

The District Court judge, though, has some initial discretion to determine whether it's an appropriate case for a three judge court.

And I understand there's some proceedings before the the single judge in terms of.

Helping that judge decide whether or not it is a proper case for a three judge court, if the if the judge believes it is and I mean the reasons why, why it may not be as it may be premature.

We use the word impasse, but we're really at an early part of the proceeding.

Elections aren't just eight or nine months away.

The primary could move back.

Remember, we are early enough in the process so that it may.

Be premature, plus plus there's a dispute going on that they're struggling in the state courts, as we just discussed to come up with an answer.

So it may not be an appropriate case if it is an appropriate case for a three judge court.

The chief judge of the sixth Circuit is required to appoint.

two judge judges, one circuit judge and one district court judge, typically a district court judge from the state.

Those three judges operate as a single district court, and decisions they make are appealable directly to the U.S. Supreme Court.

Here's the big rub here's the rub here's the rub.

There are a number of doctrines in the law that go under the rubric abstention doctrines, their doctrines that govern when a federal court will stay its hand.

They may involve state judicial proceedings.

Federal courts are very reluctant to interfere with state judicial proceedings, especially pending state judicial proceedings.

Federal courts are also very reluctant to get involved in apportionment cases.

So there's this host of abstention doctrines which could make the federal court if if a three judge court was convened reluctant to even get into the dispute dispute.

And then the final point, and I think it's really one of these.

Be careful what you wish for points.

What the plaintiffs in the federal court case are asking is something that cannot be done.

They are asking a federal court to adopt a plan that has been rejected by the state Supreme Court.

This is federalism one on one.

Nothing is more basic when you look at the system of judicial federalism than the state Supreme Court is the final arbiter as to what the state constitution, what state law means.

The Ohio Supreme Court has spoken and has said plan number two violates the state constitution.

Period end of story.

They cannot.

Implement that plan.

If we ended up three months from now and the state had completely thrown its hands in the air and the federal court decided it was going to hear the case, no, perhaps they would implement some other plan, but they can't implement a plan that's been rejected by the Iowa Supreme Court on state constitutional grounds.

That's interesting because the lead plaintiff in this case or the one at the top of the list there is Mike on a dock.

He's a lobbyist head of Ohio Right to life and also a former deputy Ohio attorney general.

And you're saying that what he and the others are asking for cannot be done very complicated unless you specialize in it.

You really wouldn't know it, but it's really very, very basic.

Basic Federal Law, Federal Courts Law.

I want to ask you, would any of this be happening?

Would the Supreme Court cases be happening?

The possibility of moving it to federal court?

Any of this be happening.

If voters hadn't approved this constitutional amendment in 2015, and potentially we might go through this again with the congressional maps, with the constitutional amendment in 2018.

Or would the maps just have been approved by the apportionment board and would be over this and people would be unhappy potentially with that?

Good question.

I mean, but the history is that I think it was 2011 after this the the commission, the previous commission adopted a map that was allegedly gerrymandered for Partizan purposes.

The there was a challenge to that, and the Ohio Supreme Court rejected the challenge, saying there was no prohibition in the Ohio Constitution on Partizan gerrymandering.

So but for the amendment, we wouldn't have this dispute.

The notion of nonpartisanship built into the Constitution, the notion of proportionality.

Those are not unprecedented but unique provisions of the state constitution.

And as you know, the federal court.

The U.S. Supreme Court has washed its hands of Partizan gerrymandering cases.

They did that a couple of years ago, demonstrating that those who wanted to prohibit Partizan gerrymandering in Ohio were absolutely on the right track.

They anticipated well, the U.S. Supreme Court ultimately said that is, if you want to prohibit it, do it under state law.

And we did it through the constitutional amendment in 2015, and we did it in 2018 for Congress in effect, saying yes, we really mean it.

So is there any way that any of the situations involving either what will be the legislative maps or what will be the congressional map?

Does any of this potentially go to the U.S. Supreme Court?

Never underestimate the U.S. Supreme Court, who would have thought they would have decided the 2000 election having having said.

Having said that, I don't see how a state court decision on the state apportionment the state maps has any way to go into the state to the U.S. Supreme Court.

You know, they've thrown around some, some comments about parsing gerrymandering.

There are a few things in the briefs about racial this or that, but I don't think there's there is a there's a basis for that.

The congressional issue gets a little more complicated.

It would require another whole interview to really go at it.

But there's some there's there's some doctrines percolating in some legal circles that says that state courts are limited what they can do with regard to congressional redistricting.

But, you know, so I'd say there's a small chance that that could happen, but those issues haven't really been raised in this proceeding.

So I think it's pretty unlikely that the U.S. Supreme Court is going to get into it.

In fact, when they just got involved in a case involving the Voting Rights Act out of Texas.

They said one of the reasons they weren't the courts should not be involved.

The federal courts should not be involved is that was too close to an election.

So still another reason why the U.S. Supreme Court is unlikely on an emergency basis to jump into any of the old Io cases after the Ohio Supreme Court rules and COVID case numbers and hospitalizations in Ohio have dropped rapidly and are back at levels last seen last summer.

But there have been a total of 36,230 deaths in Ohio as of Tuesday because of COVID, which is more than the population of Marion or Lima or Brunswick or Mason.

More than 81% of school districts have now made masks optional for all students, which covers more than two thirds of all public school kids in Ohio.

Masks are now required for just under 30% of all students and around 70% of all districts.

two months ago, masks were optional in just over half of Ohio's more than 600 public school districts.

That represented more than 70% of all public school students in the state.

They were required for all students at around 40% of districts, which represented less than a quarter of all students.

And that is it for this week for my colleagues at the Statehouse News Bureau of Ohio Public Radio and Television.

Thanks for watching.

Please check out our website at State News dot org, and you can follow us on the show on Facebook and Twitter.

And please join us again next time for the state of Ohio.

Support for the statewide broadcast of the state of Ohio comes from medical mutual, providing more than 1.4 million Ohioans peace of mind with a selection of health insurance plans online at Med Mutual dot com slash Ohio by the law offices of Porter, Wright, Morris and Arthur LLP, now with eight locations across the country.

Porter Wright is a legal partner with a new perspective to the business community.

More at Porter Wright dot com and from the Ohio Education Association, representing 124,000 members who work to inspire their students to think creatively and experience the joy of learning online at OHEA.org