By Jim Ellis
Feb. 17, 2021 — The Census Bureau announced just before the Presidents’ Day holiday break that there will be yet another long delay in transmitting the census data to the states. Without the new numbers, redistricting becomes unachievable.
The new target date is Sept. 30, postponed from their first postponement date of July 30. At this point, the postponed apportionment release date remains April 30, long after the statutory deadline of Jan. 1. Apportionment is the first critical step in the redistricting process since this informs the states how many congressional seats they will be awarded for the current decade.
The late September target (and there’s no guarantee even this date will be met) will make it difficult for many states to finish their redistricting on time, and could force the process into the courts if state legislatures are unable to convene or meet a legislative calendar in terms of allowing public input. Even now, at least several states will have to enact emergency legislation to change deadlines to avoid violating pre-existing legal redistricting deadlines.
The delays have already changed the political situation in New Jersey and Virginia. With both states having odd-numbered year state legislative elections, the two are always the first to receive their new census data. In both states, legislative elections will now proceed under the 2011 maps with previously enacted amendments. When the lines are eventually completed, it is possible that new elections, possibly for 2022, will be ordered in Virginia. New Jersey voters passed a referendum in November that allows redistricting to occur before the 2023 state legislative elections.
Another problem could be lawsuits filed against the eventual apportionment. Apparently, the principal problem for the delays is exactly which people to count and where they are placed. College students, for example, are typically counted at the university campus on which they reside. Now, however, so many are not attending in-person classes. Therefore, arguments are ongoing as to where this group should be counted, either at school or back at their primary residence.
Additionally, one of President Biden’s new executive orders reversed Trump Administration policies about whether or not to count non-citizens. This change of direction has also created further delays.
Based upon these controversies, and others, it is probable that at least one potential losing state – apparently Alabama is on the cusp of losing a seat but may not depending upon the counting criteria – could sue over the apportionment conclusion meaning even further delays as various potential lawsuits wind their way through the judicial process toward final determination. All of this could conceivably mean redistricting is postponed until the 2024 election cycle.
States having early primaries, March of 2022 for Texas, Illinois, North Carolina, and California, for example, are already running up against time constraints and will certainly have to postpone December candidate filing deadlines and very possibly their early primaries. States such as Alabama, Georgia, Indiana, Kentucky, Nebraska, Ohio, Oregon, Pennsylvania, and West Virginia that have May primaries, could also find themselves quickly running into scheduling problems.
Redistricting will obviously affect all multi-district congressional states, but most particularly those that are gaining or losing seats. At least 10 districts are expected to change states in reapportionment.
The Brennan Center for Justice recently released their study describing how each state will be affected by the redistricting delays. Today, we look at those states that are gaining seats. Tomorrow, we will examine the entities who look to lose representation.
Texas: Potential Gain of 3 Seats
The biennial legislative session will end long before the state will receive its census data. The governor, however, has the power to call special sessions, so the legislature still would have the ability to pass new maps. The Legislative Redistricting Board, comprised of Texas’ statewide elected officials, has jurisdiction if the legislature fails to act, but congressional lines are not included in this panel’s purview.
The state has a March 1, 2022 primary date, but that could be postponed if no new map is completed after the national apportionment is released and census data transmitted.
Florida: Potential Gain of 2 Seats
Florida’s late primary, Aug. 23, 2022 in this instance, gives the legislature and governor time to pass new maps even with late-arriving data. Their redistricting deadline is March 12, 2022 to enact redistricting plans for the state legislature. There is no stated deadline to approve a congressional map.
Arizona: Potential Gain of 1 Seat
Arizona has a redistricting commission comprised of two Democrats, two Republicans, and one Independent the latter of whom automatically becomes the panel’s chair.
The commissioners have already been selected, meaning the process can move quickly once they receive the necessary census data; but they must schedule a 30-day public comment period when draft maps are released. The next Arizona primary is Aug. 2, 2022.
Colorado: Potential Gain of 1 Seat
Colorado now has a redistricting commission comprised of 12 members, six of whom have been chosen. A special judicial panel selected two Democrats, two Republicans, and two Unaffiliated voters. The judges will then select six more, chosen from a group of applicants put forth by the legislative leaders in both chambers.
The judicial panel will select two more Republicans and Democrats from the legislative pool, one from each of the four state House and Senate leaders’ nominees, and two more from the remaining Unaffiliated pool. Separate commissions, using the same selection formulas, are empaneled for the congressional and state legislative districts.
The commissions have 45 days after receiving the census data to release their map drafts for public comment. The next Colorado statewide primary is June 28, 2022.
Montana: Potential Gain of 1 Seat
It appears Montana may reacquire the second congressional district they lost in the 1990 census. This is another state that has a redistricting commission, but it has not been needed for congressional redistricting since the state was in at-large status for the last two census periods.
The commission will have 90 days to adopt a map after receiving their census data. Since only two districts would be involved, this should be a relatively simple process.
North Carolina: Potential Gain of 1 Seat
The Tar Heel State barely missed gaining a seat in the 2010 census cycle and are sure to get a 14th seat this time.
The state legislature has the redistricting pen with the governor having no veto power over the eventual new maps. Time will be an issue here as the state now has a March 8, 2022 scheduled primary moving from their traditional May voting calendar.
Oregon: Potential Gain of 1 Seat
The legislature and governor have control of redistricting, and their May 17, 2022 primary date could make things tight from a timing perspective. If the legislature fails to complete their responsibility, the Secretary of State then assumes redistricting authority.