By Jim Ellis
April 29, 2020 — The deadline for the Census Bureau to release the new population data is March 31, 2021, but with the entire process being delayed due to COVID-19 precautions, the ability to meet the requirement is becoming more difficult by the day. Already, the Bureau has been delayed in dispatching their door-to-door teams necessary in obtaining the responses from people who did not return their mail tabulation form.
The Trump Administration is reportedly suggesting that the March 31 deadline be postponed to sometime in the summer of 2021. If this happens, we will see a series of redistricting problems ignited in the states. First, the political leaders in New Jersey and Virginia, places that have 2021 elections and need their new state legislative lines in place well before that date, would find themselves in a difficult position.
Initially, the two states would certainly have to postpone their primary elections because both nominate their general election candidates in June. Beyond that, it is possible they would have to even postpone their general elections into 2020 or run in the obsolete boundaries that were drawn back in 2011. In either case, we could expect lawsuits being launched from whichever party loses a particular electoral contest.
Other states would be affected, too. Many have legal deadlines in place mandating that the new redistricting maps for state legislature and the US House delegation be adopted before the legislative sessions ends. Most states recess before mid-summer, which would mean special sessions being called if the legislature is to act.
The problem intensifies in the states that are either gaining or losing congressional districts in reapportionment. Currently, it appears that seven states will add seats to their delegations (the best projections suggest that Texas will gain three, Florida two, and Arizona, Colorado, Montana, North Carolina, and Oregon one apiece), while 10 will lose single districts (Alabama, California [for the first time in history], Illinois, Michigan, Minnesota, New York, Ohio, Pennsylvania, Rhode Island, and West Virginia).
The aforementioned apportionment is based upon calculations released publicly and not, of course, using the actual numbers. Therefore, we could see some differences between these projections and what the formulas actually produce when the Census Bureau finally can produce the updated real figures.
Clearly, regardless of which states gain or lose congressional seats, the affected states cannot default to the current district lines because they won’t have the same number of seats. Precedence does exist, however, for conducting at-large, or statewide, elections for the House of Representatives when a new seat or seats are awarded without the state creating a new map. Thus, seeing at-large individual US House contests for a state as large as Texas or Florida becomes a possibility.
The states losing congressional representation have other problems if the census numbers are not available in time for them to draw a new legal map. In such a situation, it may be possible that all of the districts are forced to run statewide.
Another option may be for Congress to temporarily suspend the Apportionment Act of 1929 that permanently froze the number of House members to 435. This might be one option for the losing states to hold their 2022 elections under their current map if numbers are not available by the necessary state deadlines.
There is also precedence for not redistricting. Largely over the argument to permanently freeze the size of the House, the 1920 reapportionment simply was not done. Therefore, those congressional delegation maps remained in existence for a 20-year period instead of the normal 10.
COVID-19 has affected many aspects of American life, and reapportionment and redistricting may soon be another. In this case, however, the after-effects could last a full decade.