Category Archives: census litigation

“Time to retool census? Some think so after minorities missed”

Story from the Associated Press. Similar pieces have been popping up this month, including in the New York Times. 2030 may seem like a long time away, but fitting into the legal framework will take some time. The Times piece notes the 1999 Supreme Court decision in Department of Commerce v. United States House, which held that “sampling” was an impermissible technique. But that decision formally rests on a statutory decision; four justices in a concurring opinion (authored by Justice Scalia) sparred with dissenting justices (particularly Justice Stevens) about whether the scope of constitutional authority to engage in “sampling.” A later Supreme Court decision, Utah v. Evans in 2002, found that a different technique, “hot-deck imputation,” passed both constitutional and statutory muster (over a couple of dissenting opinions). There are things Congress could do, and there are unanswered constitutional questions out there.

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“The use of differential privacy for census data and its impact on redistricting: The case of the 2020 U.S. Census”

New article by Christopher T. Kenny et al., in Science Advances. Abstract:

Census statistics play a key role in public policy decisions and social science research. However, given the risk of revealing individual information, many statistical agencies are considering disclosure control methods based on differential privacy, which add noise to tabulated data. Unlike other applications of differential privacy, however, census statistics must be postprocessed after noise injection to be usable. We study the impact of the U.S. Census Bureau’s latest disclosure avoidance system (DAS) on a major application of census statistics, the redrawing of electoral districts. We find that the DAS systematically undercounts the population in mixed-race and mixed-partisan precincts, yielding unpredictable racial and partisan biases. While the DAS leads to a likely violation of the “One Person, One Vote” standard as currently interpreted, it does not prevent accurate predictions of an individual’s race and ethnicity. Our findings underscore the difficulty of balancing accuracy and respondent privacy in the Census.

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“Census Data Change to Protect Privacy Rattles Researchers, Minority Groups”

Wall Street Journal:

A plan to protect the confidentiality of Americans’ responses to the 2020 census by injecting small, calculated distortions into the results is raising concerns that it will erode their usability for research and distribution of state and federal funds.

The Census Bureau is due to release the first major results of the decennial count in mid-August. They will offer the first detailed look at the population and racial makeup of thousands of counties and cities, as well as tribal areas, neighborhoods, school districts and smaller areas that will be used to redraw congressional, legislative and local districts to balance their populations.

And from NPR, “For The U.S. Census, Keeping Your Data Anonymous And Useful Is A Tricky Balance”

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DOJ Will Not Prosecute Trump Officials After IG Referred Findings of False Testimony on Census

Government Executive reports. [UPDATE: this correction has been appended to the report: After publication of this story, the Justice Department and Commerce Department inspector general revealed additional information to indicate the declination to prosecute took place during the Trump administration. This story has been corrected to note this information.]

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Analysis of the federal court challenge to Illinois’s redistricting plan

Dean Vik Amar and Professor Jason Mazzone, both of the University of Illinois, have a two part series (one, two) at Justia’s “Verdict” on McConchie v. Illinois State Board of Elections, a challenge to Illinois’s redistricting plan. From the opening of the second piece:

In this—the second—installment in our series on McConchie v. Illinois State Board of Elections, in which Republican Minority Leaders in the Illinois General Assembly (in their official capacity and as registered voters) challenge in federal court the constitutionality of the apportionment of state legislative districts that the General Assembly and the Governor recently enacted, we focus on remedies. Our prior discussion flagged standing and ripeness hurdles the plaintiffs will need to overcome in order to get to the merits of their claim. And as to the merits themselves, we expressed doubts about whether the plaintiffs should and will prevail in their argument that because the Illinois legislature used a population survey rather than (traditionally) more reliable but not yet available decennial census results based on the 2020 national count, the enacted redistricting plan violates the one-person, one-vote requirement of the Fourteenth Amendment.

Yet even if the federal courts were to agree that the plaintiffs have overcome the justiciability hurdles and that they have established a violation of the Fourteenth Amendment, we are skeptical that it would be proper for the courts to grant the remedies the plaintiffs are seeking.

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“Judge dismisses push for faster U.S. Census results”

Cleveland.com:

A federal judge has dismissed Ohio Attorney General Dave Yost’s lawsuit that sought to force the U.S.

Census Bureau to provide its results by a March 31 legal deadline, six months earlier than Census officials said was possible.

Judge Thomas M. Rose cited legal precedent he said barred him from ordering someone to “jump higher, run faster, or lift more than she is physically capable.”

The court’s ruling is here.

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“A New Delay for Census Numbers Could Scramble Congressional Elections”

NYT:

The delivery date for the 2020 census data used in redistricting, delayed first by the coronavirus pandemic and then by the Trump administration’s interference, now is so late that it threatens to scramble the 2022 elections, including races for Congress.

The Census Bureau has concluded that it cannot release the population figures needed for drawing new districts for state legislatures and the House of Representatives until late September, bureau officials and others said in recent interviews. That is several months beyond the usual April 1 deadline, and almost two months beyond the July 30 deadline that the agency announced last month. The bureau did not respond to a request for comment but is expected to announce the delay on Friday.

The holdup, which is already cause for consternation in some states, could influence the future of key districts. And with Democrats holding a slim 10-seat House majority, it even has the potential to change the balance of power in the House and some state legislatures, according to Michael Li, the senior counsel at the Brennan Center for Justice at New York University School of Law. States need the figures this year to redraw district lines for the 435 seats in the House of Representatives and for thousands of seats in state legislatures.

The delay means there will be less time for the public hearings and outside comment required in many states, and less time once maps are drawn to contest new district lines in court, as often happens after redistricting.

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“Census Numbers For Dividing Up House Seats Delayed Until April 30, Bureau Says”

NPR reports:

Disrupted by the coronavirus pandemic and last-minute changes by the Trump administration, the U.S. Census Bureau announced Wednesday that the release of the first results of the 2020 census will likely be delayed by four months.

The latest state population counts used to determine each state’s share of votes in the House of Representatives and the Electoral College for the next decade are now expected by April 30.

Those numbers were legally due by the end of last year. But the bureau missed that deadline last month for the first time since it was put in place in 1976. Career civil servants postponed releasing the counts in order to try to fix irregularities they began uncovering in census records shortly after Trump officials ended counting early in October

The release date for the congressional apportionment counts has been in flux for weeks. As part of a National Urban League-led lawsuit over the Trump administration’s census schedule changes, Justice Department attorneys previously told a federal judge that the bureau was working towards finishing the processing of census records by March 6.

But that timeline was “not taking into account what we expect to find when we do data processing, which is anomalies that need to be corrected,” Styles said. “We have found anomalies, we will likely find more anomalies, and we will fix additional anomalies as we find them.”

The timing for the second set of new census results — the detailed demographic data that state redistricting officials need to redraw voting districts — remains unclear. That information is normally delivered to the states by the end of March.

“You should not expect it prior to July 30,” Styles said.

The delay ratchets up the pressure for states that are facing their own series of legal deadlines for the redistricting process in order to hold elections this year or next.

Politico: Redistricting Delay Freezes House Races

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“Biden Ends Trump Census Policy, Ensuring All Persons Living In U.S. Are Counted”

Hansi Lo Wang for NPR:

One of President Biden’s first executive actions has reversed former President Donald Trump’s unprecedented policy of altering a key census count by excluding unauthorized immigrants. The change ensures that the U.S. continues to follow more than two centuries of precedent in determining representation in Congress and the Electoral College.

Hours after he was sworn in as president on Wednesday, Biden signed an executive order that calls for all U.S. residents, in the country legally or not, to be counted in state population numbers that, according to the 14th Amendment, must include the “whole number of persons in each state.”

The state counts are used once a decade to reallocate each state’s share of electoral votes and the 435 seats in the House of Representatives. Since the first national head count in 1790, those numbers have never omitted any residents because of immigration status.

Biden’s order also rescinds an executive order Trump issued in July 2019 as part of a project at the Census Bureau to produce citizenship data using government records as an alternative to Trump’s failed push to add a citizenship question to the 2020 census forms. Trump’s order directed federal agencies to share their records with the bureau, which has been compiling information from agencies including the Department of Homeland Security and the Social Security Administration, as well as some states’ driver’s license information.

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“Trump’s Census Director To Quit After Trying To Rush Out ‘Indefensible’ Report”

Hansi Lo Wang for NPR:

The Trump-appointed director of the U.S. Census Bureau is stepping down close to a week after whistleblower complaints about his role in attempting to rush out an incomplete data report about noncitizens became public.

In an internal email announcement on Monday, Steven Dillingham said he is retiring from the bureau on Wednesday, more than 11 months before his term expires at the end of this year, according to a Census Bureau employee who spoke to NPR and asked not to be named for fear of retaliation at work.

The bureau’s public information office has not responded to NPR’s request for comment about Dillingham’s plans, which were first reported by Talking Points Memo.

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“Census numbers won’t be released before change in power”

AP:

Government attorneys and municipalities fighting over the 2020 census asked a judge Friday to put their court case on hold, as Department of Justice attorneys confirmed the Census Bureau for now will not release numbers that could be used to exclude people in the U.S. illegally from the process of divvying up congressional seats.

Department of Justice attorneys and attorneys for a coalition of municipalities and advocacy groups that had sued President Donald Trump’s administration over the 2020 census asked U.S. District Judge Lucy Koh to suspend their court case for 21 days so the administration of President-elect Joe Biden can take power and decide how to proceed.

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