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A Supreme Court Fight Over Census Data Privacy And Redistricting Is Likely Coming

Alabama filed a federal lawsuit to force the U.S. Census Bureau to move up the release of 2020 census redistricting data and stop its plans for using a new way of keeping people's information in the data confidential.
Patrick T. Fallon Bloomberg via Getty Images
Alabama filed a federal lawsuit to force the U.S. Census Bureau to move up the release of 2020 census redistricting data and stop its plans for using a new way of keeping people's information in the data confidential.

A three-judge court has rejected Alabama's request to force the U.S. Census Bureau to move up the release of 2020 census redistricting data. The federal judges have also allowed the bureau to continue plans for a new way of keeping people's census information confidential.

The ruling is expected to be appealed directly to the U.S. Supreme Court, setting up the next major legal battle at the high court involving last year's national head count and adding another layer of uncertainty to when the redrawing of voting districts around the country using 2020 census data can begin.

The timing had already been beset by the coronavirus pandemic and the Trump administration's interference with last year's census schedule, which led the Census Bureau to delay releasing the detailed demographic data to check the accuracy of it.


The lower court's ruling — issued Tuesday by U.S. District Judge R. Austin Huffaker Jr., U.S. District Judge Emily Marks and Judge Kevin Newsom of the 11th U.S. Circuit Court of Appeals — allows the bureau, at least for now, to stick with its plan to release 2020 census redistricting data by Aug. 16.

In April, the agency announced new redistricting data, which makes up the second set of results from the 2020 census, would be out by mid-August, close to five months past the current legal reporting deadline. The extra time was needed, the bureau said, to ensure the accuracy of the information, which also guides the distribution of an estimated $1.5 trillion a year in federal money for health care, education and other public services for local communities. A bipartisan group of lawmakers introduced bills in April that would formally extend the legal reporting deadline to the end of September.

Census delays have forced state and local redistricting officials around the country to scramble to adjust their own schedules in preparation for upcoming elections this year and next. Some states, including California and New Jersey, began preparing last year by getting a court order or a ballot referendum to extend their deadlines in response to the bureau's April 2020 announcement that census data would be released later than originally planned.

Alabama, however, joined Ohio in asking the federal courts to force redistricting data to be released earlier. Ohio's separate lawsuit is now on hold after the Biden administration agreed to deliver that data to the state by Aug. 16 and provide periodic status updates on the Census Bureau's progress starting this month.

Still, 15 Republican governors of states including Ohio, Alabama, Arizona, Florida and Texas recently released a joint letter to Commerce Secretary Gina Raimondo, who oversees the bureau, urging the bureau to put out new redistricting data as early as this month.


Alabama's lawsuit is also challenging the bureau's plans to change how it keeps personal information in anonymized census data confidential. The state claims that adopting differential privacy as the framework for the bureau's system for protecting people's privacy makes the data unusable for redistricting, according to the state's court filings. Sixteen states — most of which have Republican-controlled legislatures — have filed an amicus brief supporting Alabama's allegations. GOP state lawmakers in Pennsylvania, Minnesota, Nevada and Vermont have also signed onto briefs backing Alabama's suit.

The bureau announced its final privacy settings for the new redistricting data this month. An internal committee of the bureau's top officials met on June 3 to discuss feedback gathered from data users on the latest set of demonstration data released in April. The bureau has also been conducting last-minute tests after receiving 67 additional evaluation plans last month from the Justice Department. The Justice Department has been providing the agency with past Voting Rights Act cases to try to determine whether the new privacy protections would hinder the ability to ensure that people of color are fairly represented during redistricting.

Some civil rights groups and redistricting officials have been concerned the bureau's new privacy protection system may severely limit their ability to use data about minority groups within communities and small geographic areas. When announcing its final privacy settings, the bureau said its revised algorithm "ensures the accuracy of data necessary for redistricting and Voting Rights Act enforcement."

In a court filing, the bureau's chief scientist, John Abowd, has warned that if the courts ultimately block the bureau from implementing differential privacy, the release of new redistricting data would be further delayed by "multiple months."

"This delay is unavoidable because the Census Bureau would need to develop and test new systems and software," Abowd said, later estimating in another legal filing that the additional work could take at least six to seven months.

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