Ohio v. Raimondo, Case No. 3:21-cv-064

CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
Citation528 F.Supp.3d 783
Docket NumberCase No. 3:21-cv-064
Parties States of OHIO, Plaintiffs, v. Gina RAIMONDO, in her official capacity as Secretary of Commerce, et al., Defendants.
Decision Date24 March 2021

Bridget C. Coontz, Benjamin Michael Flowers, Jonathan David Blanton, Julie M. Pfeiffer, Ohio Attorney General's Office, Columbus, OH, Sylvia May Davis, Pro Hac Vice, Ohio Attorney General, Cleveland, OH, for Plaintiffs.

Stephen Ehrlich, DOJ-Civ, Washington, DC, for Defendants.



Plaintiff the State of Ohio moves under Federal Rule of Civil Procedure 65 for an order preliminarily enjoining Defendants from delivering redistricting data to all states as late as September 30, 2021 as Defendants announced would be the case in a February 12, 2021 Press Release, due to "COVID-19-related delays" and because "prioritizing the delivery of the apportionment results delayed the Census Bureau's original plan to deliver the redistricting data to the states by March 31, 2021." Census Bureau Statement on Redistricting Data Timeline , U.S. Census Bureau (Feb. 12, 2021), available at https://www.census.gov/newsroom/press-releases/2021/statement-redistricting-data-timeline.html. ECF 6, PageID 30. Ohio alternatively petitions under 28 U.S.C. § 1361 for a writ of mandamus ordering the United States Secretary of Commerce to provide the State with redistricting data by March 31, 2021. ECF 6, PageID 31.

I. Background

In order to apportion Members of the House of Representatives among the States, the Constitution requires an "actual Enumeration" of the population every 10 years, to be made "in such Manner" as Congress "shall by Law direct." U.S. Const. art. I, § 2, cl. 3 ; amend. XIV § 2. But the "population count derived from the census" goes beyond apportioning representatives; it is also used "to allocate federal funds to the States and to draw electoral districts." Department of Commerce v. New York , ––– U.S. ––––, 139 S. Ct. 2551, 2561, 204 L.Ed.2d 978 (2019) (citation omitted). Thus, the decennial census has been described as "one of the most critical constitutional functions our Federal Government performs." Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act , 1998, Pub. L. No. 105-119, § 209(a)(5), 111 Stat. 2440, 2481 (1997) ("1998 Appropriations Act"). To ensure the census's integrity, "[t]he Framers assigned the task of enumeration to the federal government to make the apportionment count as objective as possible and to avoid the possibility of corruption by state politics." NAACP v. Bureau of Census , 382 F. Supp. 3d 349, 357 (D. Md. 2019) (citation omitted). Within the federal government, Congress has "virtually unlimited discretion in conducting the decennial ‘actual Enumeration.’ " Wisconsin v. City of New York , 517 U.S. 1, 19, 116 S.Ct. 1091, 134 L.Ed.2d 167 (1996) (quoting U.S. Const. art. I, § 2, cl. 3 ). Through the Census Act, Congress has largely delegated its census authority to the Secretary of Commerce, who is assisted by the Census Bureau. Id.; 13 U.S.C. § 141(a) ; 13 U.S.C. §§ 2, 4.

As Congress has recognized, "the decennial enumeration of the population is a complex and vast undertaking." 1998 Appropriations Act, § 209(a)(8), 111 Stat. at 2481 (1997). The 2020 Census was the culmination of an estimated $15.6 billion and over a decade of "planning, research, design, development, and execution" by thousands of Census Bureau employees to count approximately 330 million people across 3.8 million square miles. Thieme Decl. ¶¶ 4–5. This "massive undertaking" consisted of "35 operations using 52 separate systems" and a "master schedule, which has over 27,000 separate lines of census activities." Id. ¶ 4. Even before the statutory census day of April 1, 2020, the Census Bureau used satellite imagery and in-person inspections to establish a Master Address File containing every address in the country. Id. ¶¶ 8–11; 13 U.S.C. § 141(a). As census day drew near, households across the nation received an invitation by mail to complete the census, accompanied by a massive 700-million-dollar campaign to encourage participation in the constitutional survey. Id. ¶¶ 12–18. If a household did not respond online, by phone, or by mail, the Census Bureau sent up to five additional mailings. Id. ¶ 16. If a household still did not respond—as occurred for about 33% of the population—the Census Bureau attempted to enumerate them in person. Id. ¶¶ 18–28.

But the COVID-19 pandemic intervened. While the original plan was for the Census Bureau to begin in-person operations (called Nonresponse Followup) in May 2020, it was forced to suspend those operations for months. Id. ¶ 30. By the time the Census Bureau entered the field in earnest three months later, it did so during a confluence of natural disasters and civil unrest. Id. ¶ 33. "Devastating hurricanes in the Gulf Coast area ... limited and slowed the Census Bureau's ability to conduct [Nonresponse Followup] operations." Id. In "large areas of the West Coast, field operations were hampered by conflagrations that caused health alerts due to fire and smoke." Id. Simultaneously, civil unrest in cities across the country made the already-difficult enumeration even harder. Id.

The Secretary and the Census Bureau were under a statutory directive to report the census results to the President by December 31, 2020 so that he could timely submit them to Congress for reapportionment of the House. See 13 U.S.C. § 141(b) ; 2 U.S.C. § 2a. Although the Executive had asked for an extension of the pertinent statutory deadlines, Congress did not oblige. Id. ¶ 34. So, the Census Bureau again adjusted its operations in an attempt to meet the statutory deadlines. Id. ¶ 35. But that adjustment led to judicial intervention. After a court-ordered preliminary injunction forced the Census Bureau to remain in the field, an emergency Supreme Court ruling stayed that injunction and allowed the Census Bureau to conclude field operations in mid-October 2020, having resolved 99.9% of all housing units in the process. See Ross v. Nat'l Urb. League , ––– U.S. ––––, 141 S. Ct. 18, 208 L.Ed.2d 169 (2020) ; Thieme Decl. ¶ 35.

But once the Census Bureau has collected responses it must then "summarize the individual and household data that [it] collect[ed] into usable, high-quality tabulations." Thieme Decl. ¶ 36. To accomplish this, the Census Bureau must integrate data from different enumeration methods used across the country, identify any issues or inconsistencies that arise, rectify them, and produce tabulations that will guide the country for the ten years, all without compromising its statutory mandate to maintain the confidentiality of census responses. 13 U.S.C. § 9 ; Thieme Decl. ¶¶ 56-62 (describing how administrative records are incorporated and data is reconciled to produce the Census Unedited File); id. ¶¶ 63-67 (describing how the federally affiliated overseas population is incorporated into the data to produce apportionment numbers); id. ¶¶ 68-72 (describing the iterative process for compiling detailed information such as race, ethnicity, and age to produce the Census Edited File); id. ¶¶ 74-77 (describing the process for applying the Census Bureau's data privacy protection method); id. ¶¶ 78-81 (describing the process for generating usable data files).

Even using "computer processing systems" with "the latest hardware, database, and processing technology available," and working "with all possible dispatch," the Census Bureau was not able to meet its December 31, 2020 statutory deadline for reporting apportionment numbers. Thieme Decl. ¶ 37. Due to the difficulties encountered during data collection and issues that arose during the processing phase, the Census Bureau projects that it will not complete apportionment counts until April 30, 2021. Id.¶ 40. The Northern District of California has determined that "the Census Bureau will not under any circumstances report the results of the 2020 Census ... before April 16, 2021." Nat'l Urb. League v. Raimondo , No. 20-cv-05799, ECF No. 465 & 467 (N.D. Cal. Feb. 3, 2020).

The delay in apportionment means the Secretary and the Census Bureau will miss the March 31, 2021 statutory deadline to submit census-based redistricting data to the States. 13 U.S.C. § 141(c) ; Thieme Decl. ¶¶ 40–41. This was announced in a February 12, 2021 Press Release where the Census Bureau explained that "it will deliver the [ ] redistricting data to all states by Sept. 30, 2021" because "COVID-19-related delays and prioritizing the delivery of the apportionment results delayed the Census Bureau's original plan to deliver the redistricting data to the states by March 31, 2021." Census Bureau Statement on Redistricting Data Timeline, U.S. Census Bureau (Feb. 12, 2021).

The Census Bureau made the announcement for the benefit of States that use census-based redistricting data to draw their congressional or state election districts. While no federal law requires the use of census data for this purpose, the data is generally utilized by the states and also by the Department of Justice, when enforcing the Voting Rights Act. Whitehorne Decl. ¶ 4. That's why States generally use census data for redistricting.

Twenty-seven states are bound by their own laws to redistrict in 2021. See 2020 Census Delays and the Impact on Redistricting, National Conference of State Legislatures (last visited March 16, 2021), available at https://www.ncsl.org/research/redistricting/2020-census-delays-and-the-impact-on-redistricting-637261879.aspx. That has led some States under self-imposed redistricting pressure to find other solutions. In New Jersey voters approved a constitutional amendment that allowed the State to use previous district maps until...

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    ...data] for examining demographic information of minority populations for Section 2 cases"); id. (collecting cases); Ohio v. Raimondo , 528 F.Supp.3d 783, 794 (S.D.Ohio, 2021), rev'd on other grounds 848 F.Appx. 187 (C.A.6, 2021) ("While the use of census data is the general practice, no stri......

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