Long-Awaited Redistricting Data Is Expected In August After A Legal Fight Cools

Jun 29, 2021
Originally published on June 30, 2021 4:49 pm

Updated June 30, 2021 at 2:22 PM ET

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 issued on Tuesday was expected to be appealed directly to the U.S. Supreme Court. But in an email to NPR on Wednesday, Joy Patterson, a spokesperson for the Alabama state attorney general's office, said: "At the moment, Alabama and the other plaintiffs do not intend to appeal the district court's order."

In a separate statement, Alabama State Attorney General Steve Marshall signaled the state's next legal steps are unclear, noting that "after we analyze the redistricting data the Bureau provides in August, we will determine the best path forward for this litigation."

The lower court's ruling — issued 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 to stick with its plan to release 2020 census redistricting data by Aug. 16.

"We note the Court's ruling and will proceed accordingly," the bureau said Wednesday in a statement that confirmed it's still planning to produce the data by mid-August.

Alabama, Rep. Robert Aderholt, R-Ala., and the bureau's other challengers in this lawsuit have until Aug. 28 to start the process for appealing the three-judge court's ruling, Deena Harris, the courtroom deputy for Judge Huffaker, confirmed to NPR in an email.

The federal judges have also dismissed claims that the bureau's decision to use new privacy protections will produce "false" redistricting data that could dilute certain citizens' votes and violate their constitutional right to equal protection. Claims that the bureau did not properly follow the Administrative Procedure Act when deciding to change its privacy protection system for 2020 census data are allowed to proceed in the lawsuit.

If Tuesday's ruling is appealed, it would set up the next major legal battle at the Supreme 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.

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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A new court ruling has set up another legal battle over the 2020 Census that is likely heading to the Supreme Court. This time, the fight is over the data used for redrawing voting districts, and it could cause major delays to upcoming elections around the U.S. NPR census correspondent Hansi Lo Wang joins us now from New York.

Hey, Hansi.


CHANG: OK, so what does this new court ruling say exactly?

WANG: Well, the state of Alabama asked for an emergency court order that would have forced the Census Bureau to release the detailed 2020 census data about people's race and other demographic information that's used when redrawing voting districts - to release that data earlier than the bureau has been planning. The bureau's been on track to release this data by August 16, and Alabama wanted the court to stop the bureau from also using new privacy protections for keeping people anonymous in this detailed demographic data. And this new ruling by a three-judge court means the bureau can continue its plans to use these new privacy protections and stick with its schedule for releasing new redistricting data by mid-August.

CHANG: Wait. Tell us more about these protections. Like, how exactly has the bureau been planning to protect people's privacy in this redistricting data?

WANG: Well, the bureau has been developing a new way of keeping people's information confidential. It's based on a mathematical concept known as differential privacy. And it's important to note federal law prohibits the bureau from releasing personally identifiable information until 72 years after it's collected for the census. And bureau says it's trying to keep up with advances in computing and access to commercial data sets that can be cross-referenced and makes it easier to trace supposedly anonymized census to get back to a person. And the bureau concluded that a privacy protection system based on differential privacy is the best way to balance protecting confidentiality and keeping census data useful.

CHANG: So what's Alabama's argument? Like, why does the state oppose the Census Bureau's plan to protect privacy?

WANG: Alabama has been arguing that it will make the new redistricting data unusable for the redrawing of voting maps because of the way the bureau is planning to add noise or data for fuzzing the census results and the way the bureau is trying to smooth out the effects of adding that noise. Now, Alabama's argument, though, is citing early analysis of some preliminary test data, and bureau has since changed its privacy plans. And it says that its latest version - in a statement - quote, "ensures the accuracy of data necessary for redistricting and Voting Rights Act enforcement." So at this point, we'll have to keep watching this debate play out in court.

CHANG: Right. This is most likely not the end of the road legally, right?

WANG: Right, because federal law allows this three-judge court's rulings to be appealed directly to the Supreme Court. And this legal fight is keeping just a cloud of uncertainty over this data and the Census Bureau's privacy protection plans.

CHANG: Well, talk about that uncertainty. Like, how could it affect upcoming elections, you think?

WANG: Well, to prepare for upcoming elections, many local and state redistricting officials are waiting for new 2020 census data. They determine the areas future elected officials will represent - those maps. And some state and local governments have already been pushing back primary and general election dates. And these delays in getting the data out could also shrink the amount of time for public feedback on new voting maps. And, you know, the bureau says if the courts ultimately block its current privacy protection plans, the bureau will need six to seven months to work out alternative plans. And that would mean it's possible that 2020 census redistricting data may not be out until early 2022.

CHANG: Yeesh (ph). That is NPR's Hansi Lo Wang who covers the census for us.

Thank you, Hansi.

WANG: You're welcome, Ailsa. Transcript provided by NPR, Copyright NPR.