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.
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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.