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Analysis

Court Rejects Alabama Challenge to Census Plans for Redistricting and Privacy

The ruling will permit redistricting to move forward later this summer as planned.

June 30, 2021

The state of Alabama has lost its first bid to change the U.S. Census Bureau’s plans for releas­ing data for states to use for draw­ing voting maps. On Tues­day, a panel of three federal judges denied the state’s request both to speed up the bureau’s deliv­ery date and to bar the bureau from using its new tech­niques for protect­ing people’s privacy. The ruling leaves intact the bureau’s plan to publish its redis­trict­ing data sets using its new privacy tech­niques on August 16.

The Alabama case is in part a dispute about timing. On Febru­ary 12, the bureau announced that, due to Covid-19 related disrup­tions, it would deliver fully format­ted redis­trict­ing data by Septem­ber 30, 2021. Alabama, along with Rep. Robert Ader­holt (R-AL) and two state resid­ents, chal­lenged that announce­ment in a lawsuit filed on March 10.

The lawsuit conten­ded that the Septem­ber 30 release would prevent Alabama from meet­ing state consti­tu­tional dead­lines for finish­ing its redis­trict­ing process. And it asked the court to order the bureau to produce the data earlier via a motion for a prelim­in­ary injunc­tion — essen­tially, a request to get the relief it was seek­ing early in the life of its case.

After Alabama filed its suit, however, the bureau commit­ted to releas­ing redis­trict­ing data in “legacy format” by mid-August. This “legacy format” data will be complete data from the 2020 Census but will not include certain tools that make it easier to use. The bureau plans to include those tools in its still-sched­uled Septem­ber 30 release.

The three-judge panel poin­ted to the August 16 release date for the legacy data — and Alabama’s conces­sion that August would be work­able for its redis­trict­ing calen­dar — in reject­ing the state’s request for a speed-up. The court found there was “very little” evid­ence show­ing that Alabama and others would suffer irre­par­able harm absent a court order in their favor.

In addi­tion to chal­len­ging the delayed data release, Alabama is seek­ing to over­turn the Census Bureau’s decision to imple­ment a method for protect­ing people’s personal inform­a­tion known as “differ­en­tial privacy.” The tech­nique intro­duces stat­ist­ical “noise” into data that the bureau releases. The bureau plans to use differ­en­tial privacy for the first time this year to comply with its under­stand­ing of its legal duty to keep census data confid­en­tial.

Alabama claims that differ­en­tial privacy will result in inac­cur­ate data products that are unfit for redis­trict­ing purposes and viol­ate vari­ous federal laws. And, as with its request regard­ing the redis­trict­ing deliv­ery date, the state asked the court to block differ­en­tial privacy early in the case.

The panel rejec­ted Alabama’s request on this front as well. The judges dismissed several of Alabama’s claims entirely from the lawsuit, reas­on­ing that, since the bureau has yet to release data with differ­en­tial privacy applied, “there is no indic­a­tion that differ­en­tial privacy will, in prac­tice, skew redis­trict­ing data,” and the chal­lengers have thus suffered no harm that could support their case.

The judges also rejec­ted Alabama’s request for imme­di­ate relief under the federal Admin­is­trat­ive Proced­ure Act. The panel reasoned that, among other things, the state had known about the bureau’s intent to use differ­en­tial privacy since Septem­ber 2017 and thus had waited too long to seek imme­di­ate help from the court.

A win for Alabama against differ­en­tial privacy could have caused substan­tial addi­tional delays to the redis­trict­ing process. The bureau has stated that if it had to imple­ment a new disclos­ure avoid­ance method in lieu of differ­en­tial privacy, it would need six to seven months to final­ize that new meth­od­o­logy.

Alabama may appeal the denial of its request for quick relief directly to the Supreme Court since the ruling came from a three-judge panel. The state could also move toward trial with any of its claims that the panel didn’t elim­in­ate from its case.

In the mean­time — and barring any future legal devel­op­ments from the Supreme Court or else­where — the bureau’s plan to deliver the legacy redis­trict­ing data by August 16, with differ­en­tial privacy applied, stands.