Skip to main content

Issue 2 is a legally sound proposal

By
-

To the editor:

Issue 2 is a legally sound proposal for creating an independent redistricting commission. It is our legal opinion that the function Issue 2 assigns to a panel of Appellate Court judges is limited, proper, and poses no conflict of interest or separation of powers problems under Ohio or Federal law.

Objections recently raised about the role of appellate court judges in the process are inaccurate in the following respects, elaborated upon more fully below.
 
• Appellate judges are screeners only. Under the Issue 2 plan, all the appeals court judges will do is screen potential members of the commission for their qualifications. All cases involving the legality of the redistricting plans will go directly to the Ohio Supreme Court or to federal court. The Ohio appeals courts will not be involved in anything other than screening potential members of the commission, so there is no conflict for them.

• Ohio judges frequently play this role. Judges in Ohio are often involved in appointing people to commissions and boards, such as probate judges appointing members of county boards of developmental disabilities.

• This proposal has precedent. In other states - for example Arkansas, Colorado, and New Jersey - the Chief Justice of their Supreme Courts is involved in the actual appointment of a member or members of their redistricting commission.

• Judges are supposed to be the most impartial, non-political branch of government, so they are uniquely suited for this role.

A Limited Role with No Conflict

As an initial matter, we note that the responsibility delegated to judges under Issue 2 is carefully circumscribed and limited. The redistricting process takes place only once every ten years.

Judges are given no role in the drawing of district lines. Their only responsibility is to screen applicants for the Independent Citizen's Redistricting Commission and select the initial pool of 42 candidates, from which the final 12 Commission members will ultimately be chosen. It bears emphasis that the Citizens Commission, not the panel of appellate judges, will draw the maps.

This panel of eight appellate judges is ideally suited to perform the limited but important function delegated to it under Issue 2. Their role is to screen applicants, taking into consideration their skills and abilities, expressly including their “capacity for impartiality.”  We can think of no one better suited to evaluate the capacity for impartiality of potential commission members than judges.  

In fact, this is precisely why appellate judges were chosen to serve this role. Any suggestion that appellate judges are incapable of evaluating the capacity for impartiality, without having their own impartiality tainted, simply underestimates the fine men and women who serve in this capacity.

It also bears emphasis that appellate court Judges will never preside over litigation resulting from the work of the Commission.

The Supreme Court currently, and under this proposal, has exclusive state jurisdiction to decide redistricting disputes. While there has been some criticism of the fact that the Supreme Court has the authority to draw maps if the commission cannot reach agreement, it has always been the case – in Ohio and other states – that the state courts draw plans as a last resort, in the event the entity assigned with this responsibility cannot reach agreement. Nothing has changed in this respect.

Contrary to some claims that have been made, it is perfectly appropriate for judges to play a role in the appointment of public officials. 

In fact, this is a critical component of the checks and balances that exist under our existing system. 

For example, in Ohio, probate and common pleas court judges have the authority to appoint certain public officials. Park commissioners (ORC 1545.06), members of joint vocational school districts (ORC 3313.11), members of metropolitan housing authority boards (ORC 3735.27) among others, are appointed by judges. 

Ohio has a long history of having judges appoint officials where those judges are insulated, much as they are in this proposal, from having to review the work of the appointees.

In addition, appellate judges ably play a role in the process of appointing redistricting commissioners in other states.   

Those states include Alaska, Colorado, Mississippi, and New Jersey. In fact, judges in some of these states play a much greater role – actually selecting commissioners, rather than just narrowing the pool of applicants – as compared with the role of appellate judges under Issue 2.  

Although Issue 2 does not assign judges with responsibility for choosing commissioners, the existence of such authority in other states should put to rest the idea that Issue 2 is a threat to separation of powers. To the contrary, it will provide a needed check on the conflict of interest that sitting legislators and other public officials have in our current system.

These facts show that there is no problem, constitutional or otherwise, with the limited role given appellate court Judges in Issue 2. 

Moreover, we believe that judges are ideally suited by temperament and experience to perform the limited role they are given in this proposal. That judges have ably performed a comparable role in Ohio and other states is testament to the fact that they are not only competent but best suited to judge the qualifications, including the capacity for impartiality, of applicants for Ohio’s proposed citizens’ commission.

Sincerely,

Mary Beth Beazley, Associate Professor of Law, The Ohio State University Moritz College of Law

Subodh Chandra, Former Adjunct Professor of Law, Case Western Reserve University School of Law

Martha Chamallas, Robert J. Lynn Chair in Law, The Ohio State University Moritz College of Law

Ruth Colker, Heck Foust Memorial Chair in Constitutional Law, The Ohio State University Moritz College of Law

Joshua Dressler, Frank R. Strong Chair in Law, The Ohio State University Moritz College of Law

Melvyn Durchslag, Emeritus Professor of Law, Case Western Reserve University School of Law

Arthur F. Greenbaum, James W. Shocknessy Professor of Law, The Ohio State University Moritz College of Law

Gary Leppla of Dayton, Past President of the Ohio State Bar Association

Deborah Jones Merritt, Deaver Drinko- Baker Hostetler Chair in Law, The Ohio State University Moritz College of Law

Richard Saphire, Professor of Law, University of Dayton School of Law

Peter Shane, Jacob E. Davis & Jacob E. Davis II Chair in Law, The Ohio State University Moritz College of Law

Lloyd Snyder, Emeritus Professor of Law, Cleveland Marshall School of Law

[[In-content Ad]]

Add new comment

This is not for publication.
This is not for publication.

Plain text

  • No HTML tags allowed.
  • Lines and paragraphs break automatically.
  • Web page addresses and email addresses turn into links automatically.
Article comments are not posted immediately to the Web site. Each submission must be approved by the Web site editor, who may edit content for appropriateness. There may be a delay of 24-48 hours for any submission while the web site editor reviews and approves it. Note: All information on this form is required. Your telephone number and email address is for our use only, and will not be attached to your comment.