Census delay threatens to roil redistricting

Census delay threatens to roil redistricting
© Greg Nash

A potentially lengthy delay in the 2020 census due to the coronavirus pandemic has thrown the decennial redistricting process into uncertainty.

The Census Bureau suspended field operations in March as the coronavirus pandemic worsened in the U.S. It asked Congress last month for a four-month delay in delivering the population data that states rely on to draw congressional lines.

Congress must approve that Census Bureau’s request, which would push back the deadline for states to receive the data from April 1, 2021, until July 31, 2021. If lawmakers sign off on the delay, it could upend at least some states’ redistricting efforts and potentially interfere with scheduled elections in two states: New Jersey and Virginia.

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Experts and watchdog groups concede that a delay in the census is virtually inevitable, given the public health risks posed by pandemic. What’s more, stay-at-home orders and social distancing measures have effectively put a hold on the door-knocking by census workers that was initially slated to begin in mid-May.

As of now, the Census Bureau is hoping to continue its field operations “as quickly as possible following June 1.” As of Wednesday, about 59 percent of households have responded to the census. In 2010, the final self-response rate was 66.5 percent.

The census delays are likely to impact redistricting most acutely in states with hard statutory and constitutional deadlines for drawing new political maps. In 17 states, those deadlines fall before the Census Bureau’s proposed new deadline for sending population data to the states.

“Some may have to consider changes to the law to push back those deadlines,” said Dan Vicuña, the national redistricting manager for the watchdog group Common Cause. “In some cases where there are constitutional requirements, there may be a more difficult process for changing that.”

For some states, the delay could mean forcing legislatures into special sessions or attempting to draw new political lines using other figures, such as administrative data, a move that would almost certainly spawn a flurry of legal challenges.

In Texas, where the legislature only meets once every two years, lawmakers are required by the state constitution to complete redistricting during their first regular legislative session after the census data is delivered.

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That session is scheduled to take place between January and late May of next year — well before the Census Bureau’s proposed July 31 deadline for getting the street-level census data to the states.

Under the Texas state Constitution, if the legislature fails to draw new political lines during its first regular legislative session after the census, the redistricting process kicks over to the state’s Legislative Redistricting Board, a five-member commission made up of state officials, including the lieutenant governor and the state House Speaker.

And in Texas, where the GOP holds every statewide office, that could put an all-Republican commission in charge of drawing the state’s political lines for the state House and Senate. If the legislature fails to enact new congressional lines, the matter would be resolved by the courts.

Texas is also among a handful of states with primaries set for early 2022. That compressed timeline has some experts and advocates concerned that state officials could use the deadlines to draw unfair congressional lines without sufficient public oversight.

“In states where legislators are in charge, it can be done pretty quickly, because their interest isn’t in getting public input. It’s about getting a partisan advantage,” Vicuña said. “I think you’ll see whoever the majority party is in the state, there’s the risk that they’ll use that rushed process as an excuse to avoid getting public input.”

But even in some states with independent redistricting commissions, the time crunch could complicate things. In California, the Citizens Redistricting Commission is required to complete its work by Aug. 15, 2021, just two weeks after the Census Bureau’s deadline for delivering the data.

The two states under the most pressure under the Census Bureau’s proposed new deadlines are Virginia and New Jersey, which have regularly scheduled legislative elections next year. Primaries in both states are currently set for June 2021.

Jeff Zalesin, a fellow at the Campaign Legal Center whose work focuses on the 2020 census, said that one option may be to postpone those primaries until the state legislatures are able to complete the redistricting process. Such a delay isn’t without precedent. After the last census, in 2011, Virginia pushed back its primaries from June to August to allow more time for redistricting.

But Zalesin said it’s also possible that legislators could seek to move forward with the primaries under existing political maps instead of waiting for the new data from the Census Bureau. Those existing maps, however, are nearly a decade old, and holding elections under current boundaries runs the risk of legal challenges.

“The legislature in this situation would, under the current constitution, face kind of a choice to either pass some legislation to move the primary dates so the elections could be held under new maps or seek to hold the 2021 legislative elections under the old maps, which invites some risk of being sued,” he said.

Virginia’s redistricting process may be in for a change. Voters are expected to weigh in on a proposed constitutional amendment that would take redistricting power away from the state legislature and hand responsibility to an outside commission. If approved, the new system would go into effect next year.

Other states, including California and Michigan, have already made the switch to redistricting commissions.

The National Democratic Redistricting Committee (NDRC), the redistricting reform group founded by former U.S. Attorney General Eric HolderEric Himpton HolderTrump official criticizes ex-Clinton spokesman over defunding police tweet Obama to speak about George Floyd in virtual town hall GOP group launches redistricting site MORE, has also expressed some concern that state lawmakers could seek an advantage by holding elections on old political maps.

In a memo issued last week, the organization’s president, Kelly Ward Burton, outlined a set of principles for redistricting in the event that the census results are delayed, insisting that new maps must be in place before the 2022 congressional and state legislative elections and that “states with off-year state legislative elections should take all reasonable efforts to hold their elections on redrawn state legislative maps in 2021.”

“No state should use the delayed release of data as a pretext for holding another set of elections on maps that may be politically advantageous because of how they were drawn in the previous redistricting cycle,” Ward Burton wrote.

The NDRC and other advocacy groups are pushing for the Census Bureau to release its 2020 population data on a rolling basis next year — similar to what the agency has done in past years. That would allow states with early redistricting deadlines or elections to receive the figures before the July 31, 2021, deadline proposed by the Census Bureau.

The Census Bureau announced this week that it would resume some limited operations in certain states, including dropping off census packets at the front doors of households that don’t receive mail. That process doesn’t require any interaction between census workers and the individuals they’re tasked with counting.