By Jim Ellis
June 1, 2021 — As we know, the Census Bureau has delayed in meeting its public reporting deadlines, which causes ramifications in the political world. As a result, the state officials responsible for redistricting could well find themselves placed behind the proverbial eight ball as the new year approaches.
Reapportionment is the term used to explain the entire decennial process. Reapportionment, as the US Supreme Court defined it in their 1999 ruling on the US Census Bureau v. House of Representatives case, is basically divided into two parts. The first, which was finally completed and released on April 26, is the allocation of congressional seats to the states. The second is the re-drawing of congressional, state, and local district boundaries most often referred to as redistricting.
To complicate matters even further, the delayed allocation proved much different – affecting six seats to be exact – than predictions. It was believed for at least two years that Texas would gain three seats in the 2020 reapportionment and Florida two, with Arizona, Colorado, Montana, North Carolina, and Oregon adding one seat apiece. The actual numbers found Texas gaining two, Florida one, and Arizona none. The other one-seat gaining states were correctly predicted.
Conversely, Alabama, California, Illinois, Michigan, Minnesota, New York, Ohio, Pennsylvania, Rhode Island, and West Virginia were all expected to lose one seat apiece. The actual report found Alabama, Minnesota, and Rhode Island each retaining the same number of seats they held in the 2010 reapportionment, while the others did lose a single district apiece.
The Census Bureau claims that COVID is largely responsible for their delays, but the state of Alabama, in their pending lawsuit against the federal statistical entity, disagrees. Alabama claims the deadline violations occurred because of the Bureau’s attempt to impose, for the first time in history, differential privacy over the data. This means, under the argument of protecting individual privacy, data would be deliberately scrambled, and certain information not publicly released.
Differential privacy alone would make redistricting extremely difficult for state map drawers because the released census tract numbers, now by definition, wouldn’t equal the state population figures brought forth earlier in the year. The effect would cause political havoc throughout the country. A court ruling on the Alabama case is expected shortly.
Because of a successful legal challenge from Ohio, the Census Bureau has agreed to make the data necessary for redistricting available to the states by Aug. 15 instead of the Oct. 1 date indicated when allocation was announced.
The deadline puts strong implementation pressure on the Bureau to finalize the differential privacy algorithm, now in the process of working through its sixth, and probably not final, iteration. Therefore, Aug. 15 becomes a key day in the 2020 census redistricting procedure. If the Bureau fails to meet this agreed upon deadline, we could see the underpinnings of redistricting not being completed until the next election cycle.
A likely remedy, if redistricting can’t be completed, is to simply run under the current maps. This would be an acceptable solution except in the 13 states that are either gaining or losing congressional seats.
In the states receiving the transferred seats, those in Texas, Colorado, Florida, Montana, North Carolina, and Oregon, the candidates for the new seats would be forced to run statewide for the House of Representatives.
The situation, however, becomes much more difficult for the states losing representation such as California, Illinois, Michigan, New York, Ohio, Pennsylvania, and West Virginia. If redistricting can’t be completed in time for the 2022 elections in these places, all members would have to run at-large.
Such a process would cause political chaos particularly in California where each of the 52 congressional races would be placed on one ballot. This would mean hundreds, if not more than 1,000, candidates adorning a statewide ballot for 52 seats with each person having 52 US House votes to dispense.
The two near-term 2020 reapportionment defining points are the three-judge panel’s resolution of the Alabama v. Census Bureau complaint, and the August 15th data delivery deadline as negotiated in Ohio’s lawsuit.
The Bureau’s inherent problems appear severe. They include resolving the group quarters issue, particularly as it relates to university students and their places of residence without double-counting, finalizing the differential privacy model if they continue to move forward along this path, responding to critics who will properly challenge the accuracy and lack of transparency in the data should they adopt differential privacy, which will likely lead to major lawsuits, and to complete all of these tasks before Aug. 15.