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Federal judges asked to not certify winners in Ohio congressional primary going on now

Outside the courtroom of U.S. District Judge Algenon L. Marbley in Columbus.
Andy Chow
Statehouse News Bureau
Outside the courtroom of U.S. District Judge Algenon L. Marbley in Columbus.

A panel of three federal judges is considering a request not to certify the results of the May 3 congressional primary, which is on the ballots that early voters are casting now, though the map of those congressional districts is still under review by the Ohio Supreme Court.

A lawyer for three Youngstown residents challenging the congressional map told the judges at a hearing Monday morning that both that map and the previous one, which was rejected by the Ohio Supreme Court as unconstitutionally gerrymandered, have the same problem.

Percy Squire, who's representing Rev. Kenneth Simon, Rev. Lewis Macklin and Helen Youngblood, told the judges that both maps are "unlawful" and "suffer from the same defect": that there was no consideration for racial demographics, which Squire said the Ohio Redistricting Commission had a duty to do.

Squire told the judges the remedy is not to stop the primary, since early voting has been going on for nearly a week, but to stop the winners from being certified, "to make sure that the state is put on notice by a federal court that the Voting Rights Act requires under these circumstances for them to be cognizant of racial demographics."

But a lawyer representing Gov. Mike DeWine, Secretary of State Frank LaRose and Auditor Keith Faber – all Republican members of the redistricting commission who voted for the maps – told the judges that the Ohio Supreme Court is still looking at that second congressional map, though a decision won’t come out till May, after the primary is over. And Julie Pfeiffer said the harm in this case comes from the "litigation strategy" of the groups that challenged the map.

Pfieffer also said that though the plaintiffs aren't asking to "enjoin the election, they're only asking to enjoin the certificate of nominations to the winner", that has the same effect as stopping the primary. Pfeiffer added that would be unfair to the candidates and confusing to voters.

A decision from the judges is expected by noon Tuesday.

Chief Judge Algenon Marbley and Sixth Circuit Court of Appeals Judge Amul Thapar and Judge Benjamin Beaton are already hearing a case involving the state's House and Senate maps. The lawsuit was filed by a group of Republican voters who wanted the judges to implement maps that had been ruled unconstitutionally gerrymandered by the Ohio Supreme Court so those races could appear on the May 3 ballot. The judges have said they'll take no action on that till after April 20.

Thapar and Beaton were both appointed by President Trump; Thapar was Trump's first Court of Appeals appointment. Marbley was appointed by President Clinton.