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How Changes to the 2020 Census Timeline Will Impact Redistricting

A delay in receiving census data will impact redistricting in most states and, in many, will require changes to deadlines and processes set by state law.

Illustration of a census form
BCJ/Getty/CSA Images/blackwaterimages

Every 10 years, all U.S. states redraw their legis­lat­ive and congres­sional districts in order to comply with the consti­tu­tional mandate that districts be equally popu­lated. States redraw these districts using block-level data from the decen­nial census conduc­ted in years ending in zero.

For the upcom­ing redis­trict­ing cycle, states were expec­ted to receive census data by the end of March 2021, and, under normal circum­stances, most would complete the process of redraw­ing maps by the end of summer 2021. However, in light of the ongo­ing Covid-19 emer­gency, the U.S. Depart­ment of Commerce and the U.S. Census Bureau announced on April 13 that there would be signi­fic­ant alter­a­tions and delays to census field oper­a­tions. In conjunc­tion with those delays, the Bureau said that it would ask Congress for a four-month exten­sion of the stat­utory dead­line for deliv­er­ing redis­trict­ing-related data to the states. This would push the deliv­ery of data from Febru­ary–­March 2021, as currently sched­uled, to as late as the end of July 2021.

The Commerce Depart­ment and the Census Bureau have said that these delays are neces­sary to ensure public health and an accur­ate count. The delays will impact the legal or custom­ary redis­trict­ing timelines of most states and, in many cases, will require changes to redis­trict­ing dead­lines and processes set by state law. Nonethe­less, they will not absolve states of their consti­tu­tional oblig­a­tion to carry out the redis­trict­ing process once new census data becomes avail­able, even if the original dead­lines can no longer be kept. If states do not make the adjust­ments needed to complete redis­trict­ing on time, courts will need to inter­vene and draw tempor­ary maps to ensure legally compli­ant districts for upcom­ing elec­tion­s—a power they have exer­cised in the past.  Depend­ing on how long this process takes, courts may also need to adjust candid­ate filing peri­ods and/or delay primary elec­tions.

For a complete version of this resource with cita­tions, please use the link above to down­load the full memo and appendix.

The Proposed Data Delays

Under current law, after each census, the Commerce Depart­ment is oblig­ated to provide two types of data that are used during the redis­trict­ing process.

First, by Janu­ary 1 of the year after the census, the Commerce Depart­ment must deliver appor­tion­ment counts to the pres­id­ent, which include the total popu­la­tion of each state and the number of congres­sional seats to which each state is entitled. Then, by Janu­ary 10, the pres­id­ent must trans­mit the appor­tion­ment counts to Congress, which in turn is respons­ible for send­ing the counts to all U.S. governors. In past decades, however, the Census Bureau has finished the process earlier than required, deliv­er­ing appor­tion­ment counts to the pres­id­ent in late Decem­ber of census years.

Second, the Commerce Depart­ment is respons­ible for provid­ing states with the block-level popu­la­tion and demo­graphic data needed to redraw congres­sional and legis­lat­ive districts (commonly known in redis­trict­ing parlance as the “P.L. 94–171 file” or simply the “P.L. file,” a refer­ence to the stat­ute creat­ing the require­ment to provide redis­trict­ing data). By stat­ute, the Commerce Depart­ment must provide each state with this inform­a­tion no later than April 1 of the year after the census.  In prac­tice, however, the Bureau distrib­utes the inform­a­tion to states on a rolling basis, start­ing in mid-Febru­ary of years ending in one, with states with earlier redis­trict­ing dead­lines receiv­ing data first.

The Census Bureau has proposed to extend the response period for the 2020 census to Octo­ber 31, 2020. It has asked Congress to extend the dead­line for deliv­er­ing appor­tion­ment counts to the Pres­id­ent to April 30, 2021 and the dead­line for deliv­er­ing P.L. files to the states to July 31, 2021. The Bureau has not stated whether P.L. files will continue to be produced on a rolling basis.

The Impact of the Delay

If the deliv­ery of redis­trict­ing data is delayed, the over­whelm­ing major­ity of states would need to adjust in vary­ing degrees their redis­trict­ing timelines, in order to avoid having to use court-drawn maps for upcom­ing elec­tions. In addi­tion, some states may have to adjust their candid­ate filing or qual­i­fic­a­tion peri­ods and/or move primary dates. Delays would also impact elec­tions in New Jersey and Virginia, the two states with general elec­tions sched­uled in 2021.

A delay in deliv­ery of redis­trict­ing data also will affect the eight states that have fixed stat­utory or consti­tu­tional dead­lines for public input or parti­cip­a­tion in the redis­trict­ing process.

Summary of Dead­lines Impacted If Redis­trict­ing Data Is Delayed

A. States with 2021 Elec­tions

The most signi­fic­ant chal­lenges as a result of delayed redis­trict­ing data will be in New Jersey and Virginia, which hold legis­lat­ive elec­tions in odd-numbered years, with the next general elec­tion sched­uled for Novem­ber 2, 2021. Both states also currently have primary elec­tions sched­uled for June 8, 2021.

If redis­trict­ing data is not delivered until July 31, 2021, New Jersey or Virginia will be unable to complete the redis­trict­ing process in time even to hold delayed primar­ies before the Novem­ber 2, 2021 general elec­tions. It might be possible, however, for the Census Bureau to prior­it­ize data deliv­ery to these states in order to allow redis­trict­ing to be completed some­what earlier.

Hold­ing legis­lat­ive elec­tions as sched­uled will likely require some legis­lat­ive, exec­ut­ive, or judi­cial action, even if data can be delivered earlier than July 31. This could include allow­ing the states to use their exist­ing legis­lat­ive plans for the 2021 elec­tions, with new maps in place for the 2023 elec­tions.

B. States with Fixed Redis­trict­ing Dead­lines or Dead­lines Tied to the Census Year

Twenty-one states have redis­trict­ing dead­lines that are either fixed or tied to the census year. Most of these states will miss these dead­lines if the deliv­ery of redis­trict­ing data is delayed until July 31, as reques­ted by the Census Bureau. To avoid this scen­ario, states should consider constru­ing dead­lines flex­ibly or adjust­ing them through exec­ut­ive, legis­lat­ive, or judi­cial action.

Nine states (Cali­for­nia, Delaware, Hawaii, Maine, New York, Ohio, South Dakota, Utah, and Wash­ing­ton) have fixed redis­trict­ing dead­lines for both legis­lat­ive and congres­sional districts.  If census data are delayed until July, it will be impossible for Cali­for­nia, Delaware, and Maine to meet their dead­lines, which means that the map-draw­ing process would default to courts if those dead­lines are not adjus­ted. Other states could theor­et­ic­ally meet their redis­trict­ing dead­lines but would face a substan­tially compressed timeline. These states may also want to consider some adjust­ments to allow for the most robust redis­trict­ing process possible.

Another 12 states have dead­lines for legis­lat­ive and/or congres­sional redis­trict­ing tied to the census year. The language behind these dead­lines is often ambigu­ous and would bene­fit from clari­fic­a­tion through legis­lat­ive, exec­ut­ive, or judi­cial action. If this dead­line language is inter­preted as requir­ing redis­trict­ing in the year after the census is taken (2020), state-law dead­lines would need to be adjus­ted in most cases so these states have time to redis­trict using their regu­lar legis­lat­ive or commis­sion processes. But if the language is construed to require redis­trict­ing in the year after the Census Bureau deliv­ers popu­la­tion counts to the pres­id­ent or redis­trict­ing data to the states (2021 under the proposed exten­sion), states would not default on state-law redis­trict­ing dead­lines. However, those states still might need to hold special sessions or make other proced­ural adjust­ments in order to be able to complete redis­trict­ing in time for the 2022 elec­tion.

States with census-related dead­lines for legis­lat­ive redis­trict­ing only: Alabama, Arkan­sas, Illinois, Massachu­setts, Nevada, New Hamp­shire, Oklahoma, Oregon, and Vermont.

States with census-related dead­lines for both legis­lat­ive and congres­sional redis­trict­ing: Connecti­cut and Michigan.

States with census-related dead­lines for congres­sional redis­trict­ing only: Indi­ana.

C. States with Redis­trict­ing Dead­lines Tied to Receipt of Census Data

Eleven states have redis­trict­ing dead­lines tied either to the report or public­a­tion of census popu­la­tion counts or to the state’s receipt of redis­trict­ing data. In these states, adjust­ments to the dead­line for complet­ing redis­trict­ing will occur auto­mat­ic­ally if appor­tion­ment counts or the deliv­ery of data is delayed. Nonethe­less, states may need to call special sessions in order to complete redis­trict­ing before early primary dates.

Six states expressly tie redis­trict­ing dead­lines to the state’s receipt of block-level census data. These states are: Alaska, Color­ado, Iowa, Missouri, Montana, and Pennsylvania (legis­lat­ive only for Pennsylvania).

Another five states tie legis­lat­ive and/or congres­sional redis­trict­ing dead­lines to the public­a­tion of the census or the deliv­ery of appor­tion­ment counts to the pres­id­ent. In the upcom­ing cycle, that deliv­ery would take place in 2021 if Congress approves the Census Bureau’s reques­ted exten­sion. These states are: Louisi­ana, Minnesota, North Caro­lina, Texas, and Wiscon­sin.

D. States with No Set Redis­trict­ing Dead­lines

Eleven states do not have any stat­utory or consti­tu­tional dead­lines for legis­lat­ive redis­trict­ing, and 28 do not have stat­utory or consti­tu­tional dead­lines for congres­sional redis­trict­ing.

However, given the need to have new maps in place for the 2022 elec­tions, these states might need to hold special legis­lat­ive sessions in order to complete redis­trict­ing or altern­at­ively consider adjust­ments to elec­tion sched­ules.

States with no set dead­lines for legis­lat­ive redis­trict­ing: Arizona, Geor­gia, Idaho, Kentucky, Nebraska, New Mexico, North Dakota, Rhode Island, South Caro­lina, Tennessee, and West Virginia.

States with no set dead­lines for congres­sional redis­trict­ing: Alabama, Arizona, Arkan­sas, Flor­ida, Geor­gia, Idaho, Illinois, Kansas, Kentucky, Louisi­ana, Mary­land, Massachu­setts, Missouri, Nebraska, Nevada, New Hamp­shire, New Mexico, North Caro­lina, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Caro­lina, Tennessee, Texas, Virginia, West Virginia, and Wiscon­sin.

E. States Required to Redis­trict in 2022

Five states are not required under their state law to do legis­lat­ive redis­trict­ing until 2022. The proposed data delay should have little or no impact on redis­trict­ing in these states.

The states are: Flor­ida, Kansas, Mary­land, Missis­sippi, and Wyom­ing.

In addi­tion, two states, Missis­sippi and New Jersey, have until early 2022 to complete congres­sional redis­trict­ing.

F. States with Consti­tu­tion­ally or Stat­utor­ily Fixed Hear­ing or Public Input Require­ments

Eight states have consti­tu­tional or stat­utory dead­lines for making proposed maps avail­able for public comment or for hold­ing public hear­ings that may need to be adjus­ted in light of delays to the start of the redis­trict­ing process.

These states are: Cali­for­nia, Color­ado, Hawaii, Iowa, Michigan, New York, Ohio, and Vermont.

State-by-State Assessments

For states with deadlines tied to the receipt of census data, the dates have been calculated assuming data will be delivered on the last day of the requested delay, July 31, 2021.

Key:

State Redistricting and Election Deadlines

For a summary of the state-by-state assess­ments, down­load the appendix here