Alabama v. U.S. Dep't of Commerce

• Citation: 546 F.Supp.3d 1057
• Decision Date: 29 June 2021
• Docket Number: Case No. 3:21-cv-211-RAH-ECM-KCN
• Parties: The State of ALABAMA, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

546 F.Supp.3d 1057

The State of ALABAMA, et al., Plaintiffs,

v.UNITED STATES DEPARTMENT OF COMMERCE, et al., Defendants.

Case No. 3:21-cv-211-RAH-ECM-KCN

United States District Court, M.D. Alabama, Eastern Division.

Signed June 29, 2021

Alexander Barrett Bowdre, Brenton Merrill Smith, Edmund Gerard LaCour, Jr., Winfield James Sinclair, James William Davis, Office of the Alabama Attorney General, Montgomery, AL, Jason Brett Torchinsky, Pro Hac Vice, Jonathan Philip Lienhard, Pro Hac Vice, Phillip Michael Gordon, Pro Hac Vice, Shawn Toomey Sheehy, Pro Hac Vice, HoltzmanVogel Josefiak Torchinsky PLLC, Haymarket, VA, for Plaintiff The State of Alabama.

Jason Brett Torchinsky, Pro Hac Vice, Jonathan Philip Lienhard, Pro Hac Vice, Phillip Michael Gordon, Pro Hac Vice, Shawn Toomey Sheehy, Pro Hac Vice, HoltzmanVogel Josefiak Torchinsky PLLC, Haymarket, VA, for Plaintiffs Robert Aderholt, William Green, Camaran Williams.

Elliott M. Davis, Zachary Anthony Avallone, John Robinson, US Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

KEVIN C. NEWSOM, UNITED STATES CIRCUIT JUDGE, EMILY C. MARKS, CHIEF UNITED STATES DISTRICT JUDGE, R. AUSTIN HUFFAKER, JR., UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

On March 10, 2021, the State of Alabama ("the State"), Congressman Robert Aderholt, and two Alabama voters (collectively, "Plaintiffs") brought this suit against the U.S. Department of Commerce ("the Department"), the U.S. Bureau of the Census ("the Bureau"), and certain federal officials (collectively, "Defendants"). Plaintiffs requested a preliminary injunction against the Bureau's plan to use "differential privacy," a method of disclosure avoidance, in the processing of 2020 Census data, on the grounds that it violates the Census Act, see 13 U.S.C. § 1 et seq., the Administrative Procedure Act ("APA"), see 5 U.S.C. § 706, and the Individual Plaintiffs’ due process and equal protection rights under the Fifth Amendment. Plaintiffs also sought a writ of mandamus from this court directing Defendants to provide census data to the State of Alabama by March 31, 2021 or as soon as equitably possible thereafter.

After the benefit of oral argument, the court concludes that Plaintiffs’ motion for a preliminary injunction and petition for writ of mandamus are due to be DENIED.

II. LEGAL STANDARD

"A preliminary injunction may be issued to protect the plaintiff from irreparable injury and to preserve the district court's power to render a meaningful decision after a trial on the merits." Canal Auth. of the State of Fla. v. Callaway , 489 F.2d 567, 572 (5th Cir. 1974) ;¹ Ne. Fla. Chapter of Ass'n of Gen. Contractors of Am. v. City of Jacksonville, Fla. , 896 F.2d 1283, 1285 (11th Cir. 1990) ("The basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies." (quoting Sampson v. Murray , 415 U.S. 61, 90, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974) )).

A party seeking preliminary injunctive relief must establish four elements: "(1) a substantial likelihood of success on the merits; (2) that the preliminary injunction is necessary to prevent irreparable injury; (3) that the threatened injury outweighs the harm the preliminary injunction would cause the other litigant; and (4) that the preliminary injunction would not be averse to the public interest." Chavez v. Fla. SP Warden , 742 F.3d 1267, 1271 (11th Cir. 2014) (citing Parker v. State Bd. of Pardons & Paroles , 275 F.3d 1032, 1034–35 (11th Cir. 2001) ). Additionally, a preliminary injunction requires a showing of "imminent irreparable harm," and "a delay in seeking a preliminary injunction of even only a few months—though not necessarily fatal—militates against a finding of irreparable harm." Wreal, LLC v. Amazon.com, Inc. , 840 F.3d 1244, 1248 (11th Cir. 2016).

When ruling on a preliminary injunction, "all of the well-pleaded allegations [in a movant's] complaint and uncontroverted affidavits filed in support of the motion for a preliminary injunction are taken as true." Elrod v. Burns , 427 U.S. 347, 350 n.1, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). The court may also consider supplemental evidence, even hearsay evidence, submitted by the parties. See Levi Strauss & Co. v. Sunrise Intern. Trading, Inc. , 51 F.3d 982, 985 (11th Cir. 1995).

III. BACKGROUND

A. The Decennial Census

The Constitution requires an "actual Enumeration" of the population every ten years and vests Congress with the authority to conduct that census "in such Manner as they shall by Law direct." Wisconsin v. City of New York , 517 U.S. 1, 5, 116 S.Ct. 1091, 134 L.Ed.2d 167 (1996) (quoting 1 Art. I, § 2, cl. 3 ). The Enumeration Clause of the Constitution "vests Congress with virtually unlimited discretion in conducting the decennial ‘actual Enumeration,’ " and Congress "has delegated its broad authority over the census to the Secretary" with its passage of the Census Act, 13 U.S.C. § 1 et seq. Dep't of Com. v. New York , ––– U.S. ––––, 139 S. Ct. 2551, 2566, 204 L.Ed.2d 978 (2019) (citing Wisconsin , 517 U.S. at 19, 116 S.Ct. 1091 ). Accordingly, the Secretary has substantial discretion to take "a decennial census of [the] population ... in such form and content as [she] may determine...." 13 U.S.C. § 141(a). The Secretary is assisted in the performance of that responsibility by the Bureau of the Census and its head, the Director of the Census. See id. at § 2; § 21.

"The Constitution provides that the results of the census shall be used to apportion the Members of the House of Representatives among the States." Wisconsin , 517 U.S. at 5, 116 S.Ct. 1091 (citing Art. I, § 2, cl. 3 ("Representatives ... shall be apportioned among the several States ... according to their respective Numbers ...."); Amdt. 14, § 2 ("Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State ....")). And relevant here, the Census Act also requires the Secretary to work with each State to develop and approve plans "identifying the geographic areas for which specific tabulations of population are desired" for use in redistricting and other non-apportionment-related matters. 13 U.S.C. § 141(c). After completing the decennial census, the Secretary must report "[t]abulations of population for the areas identified" "to the Governor of the State involved and to the officers or public bodies having responsibility for legislative apportionment or districting of such State." Id.

B. Implementation of Differential Privacy for the 2020 Decennial Census

To encourage public cooperation with each decennial census, "Congress has provided assurances that information furnished to the Secretary by individuals is to be treated as confidential." Baldrige v. Shapiro , 455 U.S. 345, 354, 102 S.Ct. 1103, 71 L.Ed.2d 199 (1982) (citing 13 U.S.C. §§ 8(b), 9(a) ). This mandate was incorporated into the Census Act, which provides in Sections 8 and 9, respectively, that first, "the Secretary may furnish copies of tabulations and other statistical materials which do not disclose the information reported by, or on behalf of, any particular respondent," 13 U.S.C. § 8(b), and second, there should be no "publication whereby data furnished by any particular establishment or individual under this title can be identified," id. at § 9(a), (a)(2). These provisions have been read in tandem to "embody explicit congressional intent to preclude all disclosure of raw census data reported by or on behalf of individuals." Baldrige , 455 U.S. at 361, 102 S.Ct. 1103.

Given these guardrails, the Bureau has implemented various disclosure avoidance methods over the years with the goal of protecting the privacy of census respondents. For example, prior to 1990, the Bureau relied on the "suppression" of data to protect respondents. (Doc. 41-1 at 10.) Under this method of disclosure avoidance, the Bureau withheld publication of tables "that did not meet certain household, population, or demographic characteristic thresholds." (Id. ) And in the 2000 and 2010 censuses, the Bureau primarily used "data swapping," meaning it swapped certain characteristic data between households that were most vulnerable to re-identification. (Id. at 12.) The data swapping methodology thus infused some "noise" into the redistricting data but kept each state's total population and total voting-age population constant at the census block level—the smallest geographic area for which the Bureau collects and tabulates census data. (Id. )

Citing the need to counter advancements in computational power and the threat of sophisticated re-identification and reconstruction attacks, the Bureau announced in September 2017 that it would employ a new and more proactive method of disclosure avoidance for the 2020 Census—"differential privacy." (Doc. 3 at 23; Doc. 41 at 73.) Differential privacy, the Bureau concluded, is the most efficient method by which it can accomplish both of its goals: adequately protecting respondent information while also preserving the utility of census data. (Doc. 41-1 at 26.) Therefore, the Bureau formally adopted differential privacy in the latest version of its 2020 Census Operational Plan, published in December 2018. (See Doc. 3-4.)

Although the parties voice contrasting views of exactly what differential privacy does, they seem to agree that differential privacy injects a calibrated amount of noise into the raw census data to control the privacy risk of any calculation or statistic. The amount of noise—or as Plaintiffs would say, error—actually injected depends on a pre-determined "privacy-loss budget," also referred to as the "epsilon," which allows the Bureau to "dial up and down" the degree of privacy in a given dataset. (Doc. 3-5 at 11–12.) "Setting epsilon to zero would result in perfect privacy but useless data, and setting the epsilon to infinity would result in perfect accuracy, but would result in releasing data in fully identifiable...