Federal Judges Question Alabama’s Standing in Census Suit

As Alabama challenges the method the federal government is using to keep responses to the 2020 census confidential, one judge hearing the case noted the state constitution allows it to conduct its own count.

Rows of suburban homes. (AP Photo/Rick Bowmer, File)

MONTGOMERY, Ala. (CN) — At a Monday hearing in a federal courtroom in Montgomery, a three-judge panel seemed reluctant to wade into the rollout of the census data states will eventually use to redraw their political boundaries, questioning whether Alabama even has standing to bring a case seeking quicker release of the data and criticizing the technique the Census Bureau plans to use to keep responses confidential.

Near the end of the hearing, U.S. Circuit Judge Kevin Newsom said there seemed to be a factual dispute over whether the technique called differential privacy is better or worse than the method the Census Bureau used a decade ago to avoid disclosure of identifiable information. There also seemed to be a policy dispute between the bureau and the state over the use of differential privacy, he noted.

That “leaves me with the willies that I’m the right one to make that determination,” Newsom said.

Attorney Edmund LaCour Jr. of the Alabama Attorney General’s Office said the question before the court was not a policy or fact question, but a legal one, arguing the Census Bureau has a misconception and misreading of the law that must be corrected by the court.

The federal agency, LaCour said, seemed to have forgotten its fundamental mission: to provide apportionment data to the president, which it did last week, and provide accurate data to the states they can use in redistricting.

In March, Alabama filed a lawsuit taking aim at differential privacy, which is a mathematical definition of privacy used to analyze datasets. The method adds statistical noise, slightly altering some of the numbers so that people analyzing the data could not figure out how residents answered the census.

These alterations, Alabama argued, could prevent the state from drawing accurate political districts, violating the principal of one person one vote, and disrupt the ability of its politicians to run campaigns in the 2022 election cycle.

Alabama argued the new method added too much noise to the dataset, slightly altering the number of people counted in some blocks.

Meanwhile, attorney Elliott Davis with the U.S. Department of Justice said tweaking location data on the census adds another variable in the way of people seeking to reconstruct and figure out census responses. The method used last census – swapping out information of people who stood out in the data with nearby individuals – did not stand up to the test of time, Davis said.

The suit comes after the bureau announced in February that due to delays caused by the pandemic, for instance, the data the bureau typically releases in the March following the count would instead be released months later. The bureau first announced it would use differential privacy for the 2020 census in September 2017.

The parties argued before a three-judge panel made up of Newsom and U.S. District Judges Austin Huffaker Jr. and Emily Marks, appointees of Donald Trump. The case is being heard by a panel because of the differential privacy claims, and any appeal will go directly to the U.S. Supreme Court. 

When Marks brought up a provision of the Alabama Constitution that says the state can conduct a census of its own if it finds the federal count unsatisfactory, LaCour said that provision has not been triggered because the 2020 census has not been completed. He added the state has a right to rely on the federal census numbers.

Furthermore, launching a state-run census would come at considerable cost and the state could run afoul of lawsuits challenging the district lines under the Voting Rights Act, which would use census data in their proceedings, LaCour said.

Unlike other states, the judges noted, Alabama law does not require the state to use the census during redistricting.

As the state of Alabama began to wrap up its arguments, Newsom could not figure why Alabama jumped into the issue of differential privacy when no other state cared enough to craft a lawsuit about it, although Ohio sued over the timing of the data rollout too. Amid the docket, attorneys who ran in GOP circles seemed to be lining up on one side, Newsom said, and he wanted answers.

Was this a Democrat versus Republican issue? A rural versus urban dispute?

Newsom said his question was indelicate but he wanted an honest answer from LaCour.

“I’m just trying to figure it out,” the judge said.

LaCour replied that anyone using the data seems to express concern about it and the state saw it as a good governance issue and a general federalism concern, allowing the census to wield a lever that reshapes the data used to understand the country.

Alabama’s attorney pointed to the National Redistricting Foundation — which is associated with the National Democratic Redistricting Committee and whose amicus brief in the case described Alabama’s lawsuit as an “attempt to throw a last-minute wrench into the works” of the 2020 Census rollout — has previously expressed concern with how the bureau will apply differential privacy.

The DOJ’s Davis told the court the agency has yet to finalize the privacy loss budget that will determine how it will balance the need for accuracy and privacy, a decision that will come in June, he said. Until that time, he argued, Alabama cannot demonstrate substantial risk of harm.

When the bureau used swapping to avoid disclosure of respondents’ information in 2010, it had to keep the mechanics secret as to avoid reverse engineering, Davis said. With differential privacy, however, the bureau can “fine tune all these things in the public eye,” and plans to publish the algorithms it will use to protect privacy.

John Robinson, another attorney with the Department of Justice, told the judges the bureau has to take three more steps before the states can receive their redistricting data, and he argued that an order by the court would unlikely speed up the process. The data currently sits in an unworkable form and the bureau cannot press a button and produce it, Robinson said.

It will take two months to create an editorial file of the data, three weeks to apply its disclosure avoidance system (in 2010, swapping took four weeks) and three more weeks to create the tabulation files.

“The bureau needs this time,” Robinson said.

Alabama said it wants the Census Bureau to release state redistricting data by July 31. Earlier, the Census Bureau said it would release redistricting data by mid-August.

Cynthia Dwork, a computer science professor at Harvard University who helped invent differential privacy, says an individual’s loss of privacy from largescale data collection is analogous to the radiation from X-rays: small instances of privacy erosion over time can add up to a catastrophic loss.

Dwork joined an amici brief of data privacy experts filed into the case ahead of the hearing. In an interview, she said differential privacy is a “definition of privacy tailored to the statistical analysis of datasets” and is used by technology juggernauts such as Google, Microsoft and Apple.

“At its heart, differential privacy is a mathematical promise,” Dwork said, “and it says anything that could be learned about you from the statistical analysis of a dataset can be learned about you even if you were not a member of the database.”

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