CINCINNATI (CN) — Ohio argued before a Sixth Circuit panel Wednesday that the federal government’s failure to release census data by the original deadline could undermine the state’s congressional redistricting process.
In a lawsuit filed in February, Ohio Attorney General Dave Yost claimed the U.S. Census Bureau and Department of Commerce were ignoring their duty to finalize all census data by March 31.
The data is needed so that Ohio’s seven-member bipartisan redistricting committee can begin the process of redrawing congressional maps, which includes three public hearings before the new maps are finalized.
However, a federal judge sided with the agencies in March and ruled that Ohio has not suffered an injury because it will still be able to complete the redistricting process before the next election cycle, and therefore lacked standing to pursue its claims.
Senior U.S. District Judge Thomas Rose, a George W. Bush appointee, said in his ruling that the delay was understandable given the Covid-19 pandemic and “confluence of natural disasters and civil unrest.”
Ohio appealed to the Cincinnati-based Sixth Circuit, which heard oral arguments in the case during a virtual hearing Wednesday. The three judges on the panel appeared to be mostly favorable to the federal government’s position.
The panel shaped its questions around the backdrop of a recent declaration from the Census Bureau that it would be able to provide the data to states in a useable form by Aug. 16. The data will be given in a form known as the “legacy format,” which contains the same information as a full release of the census data, albeit in a less user-friendly presentation.
Ohio Solicitor General Benjamin Flowers argued on behalf of the state, and conceded that it did appear that the legacy data would allow Ohio to complete its redistricting. However, despite being seemingly amenable to the mid-August timeline, he argued that the state still wants the data as soon as possible.
Alongside that wish, Flowers argued for a concrete order from the court that the federal government will provide the data by the promised timeframe. He responded to the panel’s questioning by saying that state could be open to a settlement agreement.
Representing the federal government, Justice Department attorney Mark Stern seemed to shoot down the idea of a settlement but offered an alternative that the panel seemed to like.
Stern suggested remanding the case back down to the district court with the federal government pledging to keep Ohio informed on whether it is “on track” to keep release the data by Aug. 16. This would leave the district court able to handle any necessary injunctions should problems arise, and the Sixth Circuit able to hear an expedited appeal if necessary.
Flowers seemed open to the idea but said he still would “ask the court to address the two purely legal questions” regarding the merits of their claims and injuries suffered.
U.S. Circuit Judge Amul Thapar, a Donald Trump appointee, said he agreed with Stern’s proposal.
“It seems to me that the best resolution is Mr. Stern’s,” he said. “It seems not unreasonable, if they keep saying this is the date, for everyone to operate under that assumption.”
Flowers conceded that such a solution was not an “unreasonable remedy.”
The panel mostly ignored the district court’s ruling regarding standing, as questions mostly focused on what Ohio expected to be done about the delay.
Thapar was joined on the panel by U.S. Circuit Judges David McKeague, appointed by George W. Bush, and Martha Daughtrey, a Bill Clinton appointee. They did not indicate when they would issue a ruling.
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