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Rejected Alabama challenge could clear last legal hurdle to August redistricting data release

State attorney general ‘disappointed’ court didn't rule on privacy issues

GOP Rep. Robert Aderholt was one of the plaintiffs in a lawsuit Alabama brought to force the release of census data earlier than the Biden administration says it would be ready.
GOP Rep. Robert Aderholt was one of the plaintiffs in a lawsuit Alabama brought to force the release of census data earlier than the Biden administration says it would be ready. (Tom Williams/CQ Roll Call file photo)

An Alabama federal court may have removed the final legal stumbling block to the Biden administration’s plan to release census redistricting data in August, tossing the state’s challenge to the agency’s delay.

A three-judge panel threw out the suit filed by Alabama and GOP Rep. Robert B. Aderholt, a member of the state’s House delegation, saying they had not shown they were harmed by Census Bureau actions. The decision, handed down Tuesday by an 11th Circuit judge and two district judges, is immediately appealable to the Supreme Court.

In a statement, Alabama Attorney General Steve Marshall said he was “disappointed” by the decision, but noted the court did not rule on the merits of the state’s case, which also challenged the Census Bureau’s new privacy protections.

Marshall also hinted the state may not seek immediate Supreme Court review, saying, “After we analyze the redistricting data the Bureau provides in August, we will determine the best path forward for this litigation.”

The high court would have had to make a decision quickly. Required by law to give states population and demographic data to redraw districts by the end of March, the Census Bureau has said it will release the information by mid-August.

Representatives for the Justice Department could not be reached for comment late Tuesday afternoon.

Alabama sued the Biden administration in February after the Census Bureau announced the data would be released as late as September. Over the course of litigating the case, as well as a separate one brought by Ohio, the agency said it would move up the release to mid-August.

During oral arguments in the Alabama case, the state said it was amenable to an August delivery. That factored into Tuesday’s decision, as the judges found the new deadline did not harm the state enough to warrant the lawsuit.

“The bureau has made clear the data will be available for use on August 16, 2021, a date that plaintiffs have acknowledged will allow them to complete redistricting without causing them cognizable injury,” the panel wrote.

Pandemic, decisions caused delays

The Census Bureau adopted the late delivery deadline after months of delays last year on its decennial head count due to the coronavirus pandemic, as well as various decisions by the Trump administration.

Alabama also challenged the agency’s new privacy protections for census participants, known as differential privacy. The state argued the Census Bureau adopted an overly broad reading of the federal privacy mandate and that changes from a new privacy algorithm would harm redistricting efforts.

The judges noted that plaintiffs cannot say whether the differential privacy policy has harmed them before the agency actually releases the numbers.

“It may very well be that the Individual Plaintiffs will return here once the final redistricting data are actually delivered to the states,” the decision said. “But we cannot know whether differential privacy will inflict the harm alleged by the Individual Plaintiffs until the Bureau releases a final set of redistricting data.”

Census Bureau officials said the agency adopted the new protections, which use an algorithm to alter participant data, to keep census responses private and individuals from being identified in the results. The agency finalized the settings for the algorithm earlier this month, amid criticism from minority advocates and demographic experts over its impact on the accuracy of data used to draw legislative boundaries and guide more than $1.5 trillion in federal spending.

Census officials have argued that the differential privacy system provides more protection than previously used methods, as well as more transparency. The agency eventually plans to publish the algorithm behind the differential privacy protections, allowing researchers to get a better idea of how much it changed the data.

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