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Analysis

The State of Census Lawsuits on the Eve of Key Data Releases

Court battles are being waged over the census, which will apportion representation in Congress and determine who gets huge amounts of federal funding.

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Linda Parton/Shutterstock

The Census Bureau will soon release its once-a-decade reap­por­tion­ment counts, the popu­la­tion totals used to determ­ine how many seats each state receives in the House of Repres­ent­at­ives. Many legal battles have been fought to help ensure that the appor­tion­ment numbers and other census data will be full, fair, and accur­ate. Other lawsuits, however, may endanger the fair­ness and accur­acy of the count.

The stakes could not be higher: the 2020 Census dictates not just congres­sional appor­tion­ment, but also the redraw­ing of elec­tion districts around the coun­try and the alloc­a­tion of $1.5 tril­lion in federal funds annu­ally for the next 10 years. Accur­ate census numbers are essen­tial to ensur­ing that communit­ies across the nation have equit­able access to essen­tial services like health­care, food, and educa­tion and the chance to elect their repres­ent­at­ives of choice.

The Census Bureau plans to put out the appor­tion­ment numbers some­time between April 26 and April 30. Here’s where census litig­a­tion stands in the run-up to that release.

Chal­lenges to the census timelines

Last April, as the Covid-19 pandemic was spread­ing across the United States, the Census Bureau intro­duced a plan to protect the health and safety of the public while still ensur­ing that it could conduct an accur­ate count. The bureau’s plan paused the start of all 2020 Census count­ing meth­ods that required face-to-face contact. It also exten­ded the timelines for calcu­lat­ing the appor­tion­ment and for produ­cing redis­trict­ing data to the states by four months each. The appor­tion­ment data release moved from Decem­ber 31, 2020, to April 30, 2021, and the redis­trict­ing data release from March 31, 2021, to July 31, 2021.

In July 2020, Pres­id­ent Trump announced his desire to imple­ment an illegal plan to exclude undoc­u­mented people from the appor­tion­ment base — multiple federal district courts later ruled that such exclu­sion would viol­ate the Consti­tu­tion and other federal law. The plan direc­ted the Commerce Depart­ment, which houses the Census Bureau, to provide him two sets of numbers: the state popu­la­tion totals for appor­tion­ment and data about the citizen­ship status of every person in the coun­try.

Two weeks after Trump announced his exclu­sion plan, the Census Bureau suddenly and without explan­a­tion announced that it was cutting the time for collect­ing and processing 2020 Census data in half and would deliver the appor­tion­ment to Trump by the end of 2020. The bureau’s rushed plan went directly against its own state­ments about the signi­fic­ant risks a condensed census process would create for the accur­acy of the final data.

The rush posed a grave threat to count­ing people of color in the census because many of the steps the bureau inten­ded to cut short are designed specific­ally to ensure a full count of hard-to-count popu­la­tions like communit­ies of color and young chil­dren.

A coali­tion of civil rights groups, Amer­ican Indian nations, and local govern­ments and offi­cials, repres­en­ted by the Bren­nan Center, the Lawyers’ Commit­tee for Civil Rights Under Law, and the law firm Latham & Watkins LLP, sued the Commerce Depart­ment and the Census Bureau in August 2020. The lawsuit claimed that the Census Bureau viol­ated its consti­tu­tional duty to make census-related decisions that “bear a reas­on­able rela­tion­ship to the accom­plish­ment of an actual enumer­a­tion of the popu­la­tion” when it aban­doned its Covid-19 plan.

The lawsuit, National Urban League v. Raimondo (origin­ally filed as National Urban League v. Ross), also argued that the bureau’s unex­plained decision to cut the census short viol­ated stat­utory require­ments for agen­cies to give clear, evid­ence-based reas­ons for their actions. The real reason for the rush, the complaint alleged, was to guar­an­tee that Trump would still be in office when the popu­la­tion totals were provided. By short­en­ing the census timelines, the Trump admin­is­tra­tion was trying to preserve the pres­id­ent’s oppor­tun­ity to imple­ment his exclu­sion policy and suppress the polit­ical power of communit­ies of color.

The court ordered the data-collec­tion phase of the census to continue through Octo­ber 15 — more than two weeks longer than the rushed plan. Only a late emer­gency ruling from the Supreme Court preven­ted the count from running until Octo­ber 31, the full time the bureau had origin­ally asked for in its Covid-19 plan.

In mid-Janu­ary, the chal­lengers obtained a stip­u­la­tion and order barring the bureau from releas­ing appor­tion­ment data prior to Inaug­ur­a­tion Day, effect­ively prevent­ing the Trump admin­is­tra­tion from manip­u­lat­ing the numbers. And in early Febru­ary, they obtained a legally enforce­able prom­ise from the federal govern­ment that appor­tion­ment data would not be released before April 16, 2021, ensur­ing the bureau most of the time it had origin­ally indic­ated it needed in light of the coronavirus pandemic to process, spot errors in, and correct the appor­tion­ment data.

On April 22, the district court approved a stip­u­lated dismissal prevent­ing the Census Bureau from produ­cing appor­tion­ment data before April 26. Under the terms of the dismissal, the bureau agreed not to factor any citizen­ship data that it may have collec­ted under the previ­ous admin­is­tra­tion into its appor­tion­ment or redis­trict­ing numbers. And the bureau agreed to declare that any citizen­ship-data products that it was creat­ing to help Trump’s plans to exclude undoc­u­mented people are stat­ist­ic­ally unfit for use for appor­tion­ment or redis­trict­ing purposes. The bureau is also oblig­ated to produce certain metrics about the qual­ity of upcom­ing 2020 Census data releases and hold public brief­ings about those metrics.

Mean­while, two lawsuits are seek­ing to speed up the timeline for the Census Bureau’s release of redis­trict­ing data. The states of Ohio and Alabama are separ­ately chal­len­ging the Census Bureau’s Febru­ary 12, 2021, announce­ment that, due to Covid-19 related disrup­tions to the 2020 Census, the bureau will be deliv­er­ing redis­trict­ing data to the states by Septem­ber 30, 2021.

Ohio and Alabama both contend that the Septem­ber 30 release will prevent them from complet­ing their redis­trict­ing processes by their states’ prescribed dead­lines.

Both states are asking courts to declare that the Septem­ber 30 dead­line viol­ates the federal Census Act and Admin­is­trat­ive Proced­ure Act and to require the bureau to release redis­trict­ing data at the earli­est date possible.

Rulings against the bureau’s adjus­ted redis­trict­ing timeline could force it to speed up its data-processing oper­a­tions at the poten­tial sacri­fice of data accur­acy for map draw­ing.

Alabama is addi­tion­ally chal­len­ging the Census Bureau’s decision to imple­ment “differ­en­tial privacy,” a stat­ist­ical tech­nique designed to protect the private inform­a­tion of census respond­ents by intro­du­cing “noise” into census data releases. Alabama contends that differ­en­tial privacy will result in data products that are unfit for redis­trict­ing purposes and will cause vote dilu­tion in viol­a­tion of the Fifth Amend­ment.

The district court has dismissed Ohio’s case in its entirety, hold­ing that the state would not suffer any injury from the Septem­ber 30 release and there­fore has no stand­ing to bring the lawsuit. Ohio has appealed that decision to the Sixth Circuit.

In the Alabama case, the district court — which is sitting as a three-judge panel because of the added differ­en­tial privacy claims —has received all brief­ing on the state’s request for a prelim­in­ary injunc­tion and will hold a hear­ing on May 3.

Chal­lenges to the collec­tion and uses of citizen­ship data

Another chal­lenge to the Trump admin­is­tra­tion’s attempts to use the 2020 Census to collect and release data on the citizen­ship status of U.S. resid­ents recently resolved. A case in Mary­land, La Union Del Pueblo Entero v. Trump, targeted both Pres­id­ent Trump’s exclu­sion plan and his July 2019 exec­ut­ive order direct­ing the Census Bureau to create files on the citizen voting age popu­la­tion for redis­trict­ing purposes. The chal­lengers in the case claimed that both actions discrim­in­ated against Latino popu­la­tions. While the case was pending, however, Pres­id­ent Biden signed an exec­ut­ive order revok­ing Trump’s exec­ut­ive actions and halt­ing the bureau’s efforts to compile citizen­ship data. The plaintiffs have since volun­tar­ily dismissed their case.

Mean­while, a long-running lawsuit in Alabama is seek­ing a court order that would effect­ively rein­state the Trump admin­is­tra­tion’s exclu­sion policy. The suit chal­lenges the bureau’s resid­ency rule, which requires that the bureau count all persons living in the coun­try when calcu­lat­ing the appor­tion­ment, includ­ing undoc­u­mented persons. The rule imple­ments the Consti­tu­tion’s command to appor­tion the House based on “the whole number of persons in each state.” Alabama claims that the bureau’s abid­ing by the rule will cause the state to lose its right­ful share of polit­ical repres­ent­a­tion to states with larger popu­la­tions of undoc­u­mented people, though the appor­tion­ment base has always included all persons resid­ing in the United States irre­spect­ive of their immig­ra­tion status. This case is currently on hold, likely pending the outcome of the appor­tion­ment.

These legal disputes are ongo­ing. The Bren­nan Center will continue to fight for a fair and accur­ate census in and outside of the courts.

Updates on census lawsuits can be found on our regu­larly updated case pages.