Some state legislatures are working to shrink the courts’ power, undermining America’s system of checks and balances, former U.S. Attorney General Eric Holder wrote Tuesday, using Ohio as Exhibit A.
Holder, who was attorney general under President Barack Obama from 2009 to 2015, warned of a “troubling pattern” in op ed published by State Court Report, a publication of the progressive Brennan Center for Justice. Holder argued that representatives from gerrymandered districts were trying to further manipulate the system to stay in power.
“The norms that have governed the relationship between the judiciary and the legislature—and our broader system of checks and balances—are being undermined,” Holder wrote. “State legislatures, especially those that are heavily gerrymandered, are increasingly hostile to their state supreme courts. The reason is simple. They do not want to be held accountable by a coequal branch of government for violating state laws, constitutional principles, and basic fairness.”
The Ohio legislature is sharply divided on electoral districting — meaning the Republican majority has drawn districts that make it overrepresented compared to the state’s last election results.
Majority parties in many states operate sophisticated software to figure out how to draw districts so that opposition voters are “stuffed” in some and “smashed” in others, in order to maximize the number of seats the majority party can win at election time. Critics say that in such processes, politicians choose their voters rather than voters choosing them — and in so doing, they subvert the democratic process.
When it comes to partisan gerrymandering, Ohio is particularly extreme. Former President Donald Trump won less than 54% of the vote in 2020. But Republicans control 68% of the state House seats, 78% of the state Senate and 66% of the U.S. House seats.
Maybe because of this uneven, one-party powerThere has also been a recent move in the Ohio State Legislature epic corruption.
In his column Tuesday, Holder criticized Ohio GOP leaders not only for the way they drew legislative and congressional districts. He also criticized the way Republicans responded when a bipartisan majority on the state Supreme Court threw out the maps as violating anti-gerrymandering amendments to the state constitution — amendments that passed with more than 70 percent of the vote.
“In 2021 and 2022, the Ohio Supreme Court invalidated Republican-drawn congressional and state legislative district maps,” Holder wrote. “Republican state legislators and elected officials endorsed illegal maps and ignored the court’s order to redraw lawful districts, not once, not twice, but seven times. This plunged the state into uncharted waters. Ohioans were forced to vote in unconstitutionally drawn districts in the 2022 election.”
Holder later added: “This blatant disregard for the rule of law has been disastrous for the state of democracy in Ohio. It stands as a warning of what will happen if there are no consequences for those who openly flout the directives of the state judiciary.”
Writing in New Yorker a year ago, journalist Jane Mayer expressed a similar view, writing that Ohio severe restrictions on abortion were an example of what such gerrymandering leads to.
The article was titled “State Legislatures Set Democracy on Fire.” The subtitle was:Even in moderate places like Ohio, gerrymandering has allowed unchecked Republicans to pass extremist laws that would never have passed Congress.
In an editorial published Tuesday, Holder criticized Republican Party leaders in Ohio, Pennsylvania and Wisconsin for attacking the judicial branch in other ways.
In Wisconsin there are threatening impeachment newly elected Supreme Court justice for criticizing gerrymandering during the election campaign and then refusing to resign over the gerrymandering issue.
The Associated Press reported Monday that Wisconsin Supreme Court candidates often comment on controversial issues that are likely to come before the court. But so far no one was threatened with impeachment proceedings.
In Ohio, Republican officials threatened then-Chief Justice Maureen O’Connor with impeachment last year for voting with Democrats on a court ruling that Republican-drawn maps were unconstitutionally gerrymandering. Holder did not mention that, but Republicans even took down her portrait from the state party headquarters because she didn’t vote the way they wanted in the gerrymandering dispute.
In Pennsylvania, Holder wrote that “after the state Supreme Court invalidated the state’s congressional district map in 2018, GOP lawmakers redoubled their efforts to amend the state constitution to make state Supreme Court elections based on regional districts rather than statewide elections for the first time.” — similar to how districts are drawn for Congress and state legislatures. The act included virtually no safeguards in the redistricting process, giving the legislature full authority to gerrymander judicial maps.”
Republicans in the state legislature also tried to all but strip state judges of the power to redraw electoral districts. IN Moore vs. HarperNorth Carolina Republicans argued that state courts have virtually no influence over electoral districts drawn through gerrymandering in the legislature.
“Under this theory, state courts cannot hold legislatures accountable for enacting election legislation that violates their state constitution,” Holder wrote.
The U.S. Supreme Court rejected that argument, but Holder decried the fact that Republicans in many states — including Ohio — continue to espouse versions of the “independent state legislature” theory.
“In Ohio, Republican legislators filed an appeal arguing that constitutional amendments passed by ballot measure, such as the redistricting reform enshrined in the Ohio Constitution, are unenforceable,” Holder wrote.
The fight over redistricting in the Buckeye State is far from over.
The Republican-dominated Redistricting Commission will begin the process of drawing legislative maps again today (Wednesday), a move critics are calling a farce because the commission is giving itself nine days to draw maps before next year’s election, even though it has known for 16 months that the task needed to be done.
“Once again, the best advertisement for Ohio’s takeover of redistricting out of the hands of elected officials is the Republican majority on the Ohio Redistricting Commission.” veteran political journalist Howard Wilkinson he wrote on Tuesday.
O’Connor proposes just such an independent commission in the form of constitutional amendment that he hopes to put it on the November 2024 ballot. But in his editorial, Holder criticized O’Connor and her Democratic colleagues for failing to find Republicans guilty of contempt of court when they ignored the court’s orders issued last year.
“Ohio is a wake-up call of what happens when courts fail to exercise their authority when a coequal branch of government refuses to abide by the lawful judgments of a court,” the nation’s former top lawyer wrote.
Holder said that in the current climate, courts must fight for their legitimacy to protect it.
“Judges must be clear about their role and ignore attempts by legislatures to influence their decisions,” he wrote. “If courts are to be neutral arbiters of law in our democracy, they must be willing to fight for their role.”
