Judge Rejects Ohio Demand for Faster Release of Census Data

The federal government’s failure to deliver 2020 census data by the end of the month won’t prevent Ohio from completing its redistricting process, the judge found.

Ohio Secretary of State Frank LaRose, center, calls to order the 55th Electoral College at the Ohio Statehouse in Columbus on Dec. 14, 2020. (Joshua A. Bickel/The Columbus Dispatch via AP)

DAYTON, Ohio (CN) — A federal judge on Wednesday denied Ohio’s motion for a preliminary injunction to speed up distribution of census data by the U.S. Department of Commerce and dismissed the state’s case for lack of jurisdiction.

The court determined Ohio will still be able to complete its redistricting process before the 2021 election cycle and it has not suffered a concrete injury that would give it standing to pursue claims against the federal government.

Ohio Attorney General Dave Yost sued the Census Bureau and its acting director Ron Jarmin, as well as the U.S. Department of Commerce and acting director Wynn Coggins, in February. Yost, a Republican, accused the federal government of “dragging its feet” and said several delays by the bureau would prevent Ohio from completing its redistricting process, which must be done by Sept. 1.

Ohio’s Redistricting Commission, a seven-member bipartisan committee created by the passage of two constitutional amendments in 2015 and 2018, must hold three public hearings before new districts can be ratified.

The lawsuit alleged the bureau shirked its legal responsibility to finalize and release census data by March 31, and disputed the government’s claim that the Covid-19 pandemic was largely to blame for the delays.

U.S. District Judge Thomas Rose decided the case almost exactly a month after it was filed, dismissing Ohio’s case on Wednesday for lack of jurisdiction.

Rose, a George W. Bush appointee, cited the Covid-19 pandemic, as well as a “confluence of natural disasters and civil unrest” as legitimate reasons for the bureau’s failure to meet the original deadline of Dec. 31, 2020.

He pointed out that “Ohio seeks an advisory opinion that cannot redress their claimed injury” because nothing the court could do would allow the bureau to meet a March 31 deadline.

“The court,” Rose wrote, “will therefore reject Ohio’s request for an order that pretends that the Census Bureau could provide census-based redistricting data by March 31, 2021. The court cannot ‘order a party to jump higher, run faster, or lift more than she is physically capable.'”

Contrary to assertions made in the state’s complaint, Rose emphasized that census data is not necessary for its redistricting process.

“Indeed,” he wrote, “the Ohio Constitution explicitly provides that redistricting shall be based on ‘the federal decennial census or, if the federal decennial census is unavailable, another basis as directed by the general assembly.'”

While he sympathized with Yost’s contention that the census data is the preferred methodology for the redistricting process, Rose maintained that Ohio law “explicitly contemplates that census data might be ‘unavailable’ – and provides a mechanism for that contingency.”

In the state’s petition for an injunction, Yost argued delays in the redistricting process or the use of other population data would “undermine the public’s confidence” in the process, but Rose was skeptical.

“Ohio’s claim … beggars belief,” the judge said. “Accuracy would seem to be the foundation of confidence, and Ohio’s redistricting plan foresees the possibility of delays in providing numbers. It would seem that the remedy Ohio seeks is more likely to reduce public confidence.”

He added, “Ohio claims a purely procedural injury — i.e. the frustration of its expectation that the Census Bureau will follow the timelines prescribed in 13 U.S.C. 141(c). Mere procedural injuries [are] insufficient for Article III standing.”

Rose also pointed out that no law requires states to use census data during the redistricting process, and shifted the blame to Ohio for any difficulties that arise from the delay.

“Any injury Ohio may suffer,” he wrote, “is ‘fairly … trace[able]’ to Ohio’s independent decision to create a state redistricting timeline without the flexibility to accommodate the Covid-19 pandemic that has resulted in the unique challenges in completing the census this year … not ‘the challenged action of the defendant.'”

Yost said in a statement Wednesday that he will take the case to the Cincinnati-based Sixth Circuit.

“We appreciate Judge Rose’s careful consideration of the matter, but if the state does not have standing to challenge the Census Bureau’s decision to arbitrarily ignore a statutory deadline, no one does,” the attorney general said. “Ohio will appeal.”

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