Thread by @karenkasler

Ohio Supreme Court is underway - arguments are remote and not in the courtroom. The Congressional map case is the only one on the docket today.

Lawsuits have been filed over the map, which takes Ohio from 16 districts to 15, by the League of Women Voters of Ohio and the National Redistricting Action Fund.

Ben Stafford from the election law firm set up by @marceelias is presenting first. Says Ohio General Assembly "thumbed its nose" at reforms voters approved overwhelmingly in 2018 in passing a map that dramatically favors Republicans when 46% of Ohioans voted for Democrats.

Stafford says Ohio's Congressional map has "extraordinary partisan skew" when analyzed. Says Ohio map will result in 80% of districts likely to go to Republicans when 53% of voters supported GOP in the last 3 general elections, and there's a 54%-46% split over the last decade

Democratic Justice Jennifer Brunner asking about different databases used to create a map. Stafford says the Republicans' map creator Ray DiRossi was considering other data that was more predictive, but wasn't transparent about that

Republican Justice Pat DeWine asks about 2014 election, in which Ed FitzGerald led massive Democratic loss. Stafford says regardless of what data is used, the "gross partisan slant" of the Congressional map is unwarranted by Ohio's geography.

Republican Justice Sharon Kennedy says more Ohioans turn out to vote in federal elections than statewide elections, so why wouldn't you use a similar data set? Stafford says that's not what was done here, but map creators cherrypicked the elections they looked at.

Stafford says the Congressional map approved in 2011 had a 75%-25% split of districts. He says if the 2018 anti-gerrymandering amendments approved by voters mean anything, you can't go from a 75% slant to an 80% slant.

Now presenting for those opposing the map: Robert Fram, who specializes in civil rights cases. He's pointing to concerns about the way the Congressional map carves out part of Hamilton County (which leans D) and attaches it to Warren County (which is R).

Justice DeWine notes that current district went for President Biden, which means it's competitive. But Fram says adding in Warren County makes it far less so. Republican Justice Pat Fischer notes counties will need to be broken up in the map, and DeWine agrees.

But Fram notes the "substantial difference in compactness" and says non-compact counties are created with the goal of partisan gain, and says that's a tipoff that what we have unduly favors one political party.

Fram and Justice DeWine agree that splits do matter. Fram points to splits around Akron, saying Summit County was split into three districts - two R and 1 D - with one area connected by one Census block. Fram says it's not just the number of splits, but the way they were split.

Democratic Justice Melody Stewart asks, was there a map drawn by anyone that did not consider partisanship at all? Fram says there was one map submitted in evidence that did not, but that the map creators did consider partisanship because they had that data to do that.

Brunner asks if it matters where the data comes from. Fram agrees with the concern, and says getting data for particular precincts can be a problem, and also notes a lack of transparency about some data.

Fram says the deviation from compactness goal in the Congressional map is another reason this map "unduly" favors one party (in this case, the Republican Party).

Now Phillip Strach is defending the map, saying it fully complies with the Constitution. Republican Chief Justice Maureen O'Connor asks if he's saying lawmakers had to vote on the map before them? Strach says there were other maps presented and they could have considered them.

O'Connor asks if that map fails to meet the standards, what happens? Strach says going back to the drawing board was a process that could take a while and federal courts could take over.

Democratic Justice Michael Donnelly asks about the Hamilton and Summit County splits and why that wasn't addressed in their filings. Strach says computer generation was "deeply flawed" and draws "what a human being tells it to draw", and says Constitution allows 23 county splits.

Strach says only two counties were split twice, but the Constitutional rule would have allowed five counties to be split twice. Brunner asks if the Summit County split violates federal voting rights law. Strach says he hasn't heard that.

Strach says using race to create districts in Hamilton County would have violated federal law, and minority voters in that county have been afforded all the rights under federal law to which they are entitled.

Stewart asks if counties can be splits be for partisan reasons. Strach says the Constitution doesn't say you can't draw districts with partisanship in mind, it just says it can't be done excessively.
Stewart: Are you equating "excessive" with "unduly"?
Strach: Yes.

Strach makes the "it could have been worse" argument: says everyone agrees map would be 6 strong R districts and 2 strong D. What do you do with the 7 that remain? He says they could have drawn 6 as strong Rs so as not to disfavor Republican incumbents, but they didn't do that.

Strach says of those 7 districts, if Democrats "recruit good candidates and run on the right issues", these districts can "absolutely" flip back and forth in the coming decade

Strach says General Assembly relied on public testimony of Fair Districts Ohio to come up with competitiveness standard. Brunner asks how maps and other things submitted in public testimony were considered when there wasn't much time between testimony and vote.

Stewart asks about using partisan election data in creating maps. Strach says if map had been created no with election data but just geography, he says there would still be lawsuits alleging Republicans had done something because that would have produced a Republican map.

Strach says GOP lawmakers determined they were going to be sued no matter what so they drew competitive districts. Says Ohioans wanted less partisanship, "and that's absolutely what they got", with 7 of 15 districts - a plurality - "legit competitive districts."

Brunner asks if map drawers could have just taken votes for Congress without including district lines and put that in the data. Strach says he doesn't think it would have changed the analysis much but that some might have had a problem with not considering existing lines.

Strach says there are a thousand ways to do this, which is why Ohio law gives lawmakers discretion and decide reasonable ways to deal with vague and difficult concepts, and that "it's inherently political."

Strach says lawmakers just have to explain why they did what they did. Stewart says the explanation was simply it's not as gerrymandered as it could have been. Strach says there were 2 competitive districts last time and 7 this time, so it's not unduly favoring a party.

O'Connor: Why do you the 2011 map as the starting point when clearly the vote of the people demanded you scrap that? Clearly that map was unsatisfactory.
Strach: That map was criticized but not overruled.
O'Connor (who voted against the 2011 map): Didn't the people overrule it?

Strach: I don't know if people were considering the 2011 map when they voted for the 2018 amendment. The language didn't address certain things about the process. But voters clearly said they want less partisanship in Congress and that's what they got.

Stafford gets 2 minutes, and is asks about burden of proof. Says "beyond a reasonable standard" isn't appropriate here and there are specific "shall nots" here. We believe it unduly favors a political party and is in direct conflict with the Constitution.

Stafford: This map is worse than 2011 map.
Stewart: But Strach says lawmakers had no other maps before them.
Stafford: Issue is not whether maps are comparative, it's whether map is constitutional.

Stafford: If Ohio State has to spot Michigan two points every year, it may make the game more competitive. But if the rules are set up to favor one team over another, it's not fair.

And that's it - the Ohio Supreme Court will consider the arguments for and against the Congressional map approved last month. Rulings are likely in this case and in the case involving the Ohio House and Senate district maps soon because the 2022 election isn't far off.

Apologies to #legaltwitter for everything I got wrong - I'm an admirer of lawyers but I clearly am not one. DMs open to educate me on corrections. :)

One more thing: On Dec 6 the Court removed Ohio Redistricting Commission members Gov. Mike DeWine (father of Justice Pat DeWine) and Auditor Keith Faber, both Republicans, from the case, along with Democratic members Sen. Vernon Sykes and House Minority Leader Emilia Sykes.