Will Ohio Supreme Court strike down GOP-drawn House and Senate maps? Here are the arguments

As attorneys debated whether state House and Senate maps violated voter-approved attempts to curb partisan gerrymandering, Ohio Supreme Court Chief Justice Maureen O'Connor posited a question: What happens next if the court strikes down these maps?

"Let's say we disagree with you and this court orders the commission to start over," O'Connor said. "Then what happens? You come up with a new map?"

For opponents of the legislative maps – which could give Republicans a 62-37 advantage in the House and a 23-10 advantage in the Senate, that question seemed to offer hope. 

"When the court starts to think about a remedy, that means that they are at least considering the possibility of going your way, so that was encouraging," said attorney Freda Levenson of the American Civil Liberties Union of Ohio. "That stood out to me."

But the seven justices asked many questions during the hour-plus oral arguments held Wednesday morning. Some might offer insight into their ultimate decision, expected in the coming weeks, while others simply probe legal principles in the first test of voter-approved changes to the Ohio Constitution.

Wednesday was a key step in three lawsuits filed by a variety of groups ranging from the League of Women Voters of Ohio to a former Democratic Attorney General Eric Holder-backed organization. They challenged state House and Senate maps; the GOP-passed congressional map will have its day in court later.

An unfair basketball hoop or a stick not used?

Opponents of the maps say they violate a portion of reforms passed overwhelmingly by Ohio voters in 2015. Section 6 required the seven-member Ohio Redistricting Commission to attempt to draw maps that "correspond closely to the statewide preferences of the voters of Ohio."

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The statewide voting preferences of Ohioans average out to about 54% of the vote for Republican candidates and 46% for Democratic candidates over the past decade. 

Republicans justified their maps by saying voters preferred GOP candidates between 54% and 81% of the time. Those figures are the average percentage of votes GOP candidates received in recent statewide elections and the percent of statewide races won by Republicans over the past decade, respectively. 

Justices largely seemed to reject the principle that the GOP could be entitled to 81% of seats in the Ohio Legislature. 

“That’s a vast disparity in voting power," said attorney Brian A. Sutherland, who represented groups trying to block the maps. "It’s like you’re playing a game of basketball and one side has a 10-foot-hoop and the other side has a 15-foot-hoop.”

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But attorney Phil Strach, who represented Republican mapmakers, argued that the Ohio Redistricting Commission only needed to comply with technical requirements, such as not dividing communities. Language included about matching statewide voting preferences didn't apply.

"It's not mandatory," said Strach, who also defended Republican-drawn maps in North Carolina. "It is a potential stick over the majority if they don't follow the actual anti-gerrymandering rules." 

All eyes on O'Connor 

All eyes were on O'Connor, who is considered a key, independent vote on a high court of four Republicans and three Democrats. O'Connor is a Republican but has prioritized defending the independence of the judiciary over political allegiance.

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O'Connor asked a question based on the premise that Ohio's statewide voting preferences were divided 54% for Republican candidates and 46% for Democratic ones. 

"That's if you look at votes casts," Strach said.

“That’s what we’re supposed to do,” O'Connor said. 

“Not necessarily," he replied. "In the Constitution, it says election results, but that could mean votes cast.”

Justices also questioned why statewide officeholders – Gov. Mike DeWine, Ohio Secretary of State Frank LaRose and Auditor Keith Faber – were cut out of negotiations and mapmaking. LaRose called the GOP's map logic "asinine" in a text message. DeWine bemoaned not being able to pass a more constitutional map.

"This is something that's either constitutional or it's not," O'Connor said. "You nibble around the edges of a provision and say 'well, it's kind of constitutional.'" 

Strach pointed out that the "legally relevant action" was that five Republicans voted for the maps – regardless of their frustrations or misgivings. 

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The legal challenge that never ends?

If the Ohio Supreme Court sends the Ohio Redistricting Commission back to the drawing board, Strach said the justices would need to clarify what the statewide voting preferences of voters – contained in Section 6 – actually mean. 

The commission could also sue instead of drawing a new map.

 "Certain parties could decide to go to the U.S. Supreme Court and say, nope, this Ohio Supreme Court has now ordered us to violate federal law by gerrymandering in the urban counties because we can't gerrymander in the rural counties," Strach said. 

But even if the commission does approve a new map, that map could be challenged before the Ohio Supreme Court anew. The only deadline to enact a map would be the filing deadline for candidates: Feb. 2. 

"If it is challenged, and it's back here, this could go on forever," O'Connor said. 

"Ad nauseam," Strach replied. 

Jessie Balmert is a reporter for the USA TODAY Network Ohio Bureau, which serves the Akron Beacon Journal, Cincinnati Enquirer, Columbus Dispatch and 18 other affiliated news organizations across Ohio.