OSU's Tokaji: Critics show 'failure to grasp basic constitutional principles'
Aug. 29, 2012
COLUMBUS -- A proposal to create an independent redistricting commission is "limited, proper and poses no conflict of interest or separation of powers problems,'' according to an open letter signed by some of Ohio's top lawyers and legal scholars.
The letter debunks objections raised by the Ohio State Bar Association in opposition to Issue 2, a proposal to strip politicians of the power to draw their own legislative and congressional districts and transfer that power to an independent citizens commission.
Because judges help winnow the pool of commission applicants, OSBA incorrectly said Issue 2 poses a conflict of interest for them.
"It's time to cut through the phony arguments against reform and get to the real issue: leaving politicians' and lobbyists' self-interest aside and putting voters first by voting yes on Issue 2.,'' said Ohio State University law professor Daniel Tokaji, a nationally acclaimed expert in election law. He called OSBA's concerns "misguided, reflecting a failure to grasp basic constitutional principles.''
The bar association not only took the unusual step of picking sides on the politically charged ballot issue, it also did so without consulting legal experts or good government groups that have been working for years to reform the system.
If Issue 2 is approved by voters, it would require appellate judges to create a pool of 42 applicants to serve on an independent, 12-member commission responsible for drawing legislative and congressional district boundaries.
The letter notes that Ohio judges already appoint members of several public bodies, and judges in several other states' redistricting commissions play a comparable or even greater role in the selection of redistricting commissioners than the one proposed in Ohio.
Attorneys and law professors who signed the letter said their goal is to ensure factual and legally accurate information is provided to voters.
Those signing the letter include:
- 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 Lepplaof 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
There are no federal laws that restrict partisan gerrymandering, leaving it up to individual states to write their own.
Issue 2 grew out of a two-year process that included the League of Women Voters, Common Cause, Ohio Citizen Action and other non-partisan good-government groups that studied best practices in other states and sought input from all interested parties.
The letter refutes misguided concerns about Issue 2.
"Appeals court judges simply screen potential members of the Independent Citizens' Redistricting Commission for their qualifications,'' the letter states. "All cases involving the legality of the redistricting plans will go directly to the Ohio Supreme Court or to federal court.''
The letter goes on point out that some Ohio judges already appoint members of county developmental disabilities boards, metro park commissioners, members of joint vocational school districts and members of metropolitan housing authority boards.
"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,'' according to the letter.
The Ohio proposal also has precedent. In other states - such as Arkansas, Colorado, and New Jersey -- the Chief Justice of their Supreme Courts takes part in the actual appointment of a member or members of their redistricting commission.
The letter emphasizes that Ohio judges will have no role in drawing district lines. They simply screen applicants for the citizens' commission and winnow the pool of applicants. The Commission is responsible for drawing the lines.
While there has been some criticism that Issue 2 calls for the Ohio Supreme Court to draw maps if the citizens commission cannot reach agreement, it always has had such authority in Ohio and some other states. Judges in some states play a much greater role - actually selecting commissioners, rather than just narrowing the pool of applicants.
Although Issue 2 does not assign judges the 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, the letter states. To the contrary, Issue 2 will provide a needed check on the conflict of interest that sitting legislators and other public officials have in our current system.