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.