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The Impact of Census Timeline Changes on the Next Round of Redistricting

Summary: States must adapt to the new census data release schedule and adjust redistricting deadlines accordingly. Otherwise, courts may step in and draw their new congressional and legislative district boundaries for them

Census form

All states redraw their legis­lat­ive and congres­sional districts every 10 years to comply with the consti­tu­tional mandate that districts be equally popu­lated. States draw these districts using block-level data from the census conduc­ted every decade. Under normal circum­stances, states would have received this data by March 31, 2021.

However, the Covid-19 emer­gency forced the U.S. Depart­ment of Commerce and the U.S. Census Bureau to alter census field oper­a­tions and data-processing proto­cols, result­ing in a delayed timeline for releas­ing data. foot­note1_kgi1ckp 1 Ron Jarmin, “2020 Census Processing Updates,” Direct­or’s Blog (U.S. Census Bureau), Febru­ary 2, 2021,­room/blogs/director/2021/02/2020-census-processing-updates.html. On Febru­ary 12, 2021, the Census Bureau announced that it would release the state popu­la­tion totals used to appor­tion congres­sional seats around April 30, 2021; that it would make gran­u­lar redis­trict­ing popu­la­tion data avail­able to states in a disag­greg­ated and untabu­lated legacy format by mid-to-late August 2021; foot­note2_h2lq9p8 2 “U.S. Census Bureau State­ment on Release of Legacy Format Summary Redis­trict­ing Data File,” U.S. Census Bureau press release, March 15, 2021,­room/press-releases/2021/state­ment-legacy-format-redis­trict­ing.html. and that states could expect final data deliv­ery by Septem­ber 30, 2021. foot­note3_fmlpskd 3 James White­horne, “Timeline for Releas­ing Redis­trict­ing Data,” Random Samplings (U.S. Census Bureau), U.S. Census Bureau, last modi­fied Febru­ary 12, 2021,­room/blogs/random-samplings/2021/02/timeline-redis­trict­ing-data.html.

The Commerce Depart­ment and the Census Bureau have said that this timeline is neces­sary to ensure high-qual­ity data suit­able for redis­trict­ing and other uses. While neces­sary, these changes will affect the legal or custom­ary redis­trict­ing timelines of most states. In many, it will also require changes to dead­lines and processes set by state law. As a result, states may need to adjust candid­ate filing peri­ods and/or move primary elec­tion dates.

The new census sched­ule will not absolve states of their consti­tu­tional oblig­a­tion to redis­trict once new census data becomes avail­able, even if they can no longer meet inten­ded dead­lines. foot­note4_e1d5g0x 4 Once census data is released, even if it is in Septem­ber 2021, a consti­tu­tional oblig­a­tion will be triggered because states will then have numbers show­ing that districts are malap­por­tioned (i.e., not equally popu­lated). If states do not make the adjust­ments neces­sary to complete redis­trict­ing in a timely fash­ion, courts will then need to step in and draw tempor­ary maps to ensure that legally compli­ant districts are in place for upcom­ing elec­tions — a power they have used in the past. foot­note5_y39r­b0y 5 If states do not redis­trict in a timely fash­ion, then indi­vidu­als who suffer repres­ent­a­tional harms can ask a federal or state court to redraw districts to ensure that districts are equally popu­lated and comply with other state and federal law require­ments, includ­ing the Voting Rights Act. It is not uncom­mon for courts to draw maps because states fail to redis­trict. Last decade, for example, courts drew maps in Color­ado, Minnesota, New York, and Texas, among other states.

This memor­andum exam­ines

  • state-law dead­lines for redraw­ing congres­sional and legis­lat­ive district bound­ar­ies that will need to change to accom­mod­ate the later deliv­ery of redis­trict­ing data, and
  • the poten­tial impact on upcom­ing state and federal elec­tions.

Changes to the Data Deliv­ery Sched­ule

Under current law, the Commerce Depart­ment must provide two types of data used in redis­trict­ing after each census. The law also sets out timelines for the depart­ment to complete its data deliv­er­ies.

First, the Commerce Depart­ment must deliver appor­tion­ment counts to the pres­id­ent, setting forth the total popu­la­tion of each state and the number of congres­sional seats to which each state is entitled. foot­note6_c1l4yj7 6 13 U.S.C. § 141(b). Under stat­ute, the deliv­ery date for this data was Decem­ber 31, 2020. foot­note7_2rwg­s92 7 2 U.S.C. § 2a(a-b). The pres­id­ent then must trans­mit the appor­tion­ment counts to Congress, which is respons­ible for trans­mit­ting the appor­tion­ment counts to the governor of each state. The govern­ing stat­ute contem­plated this process being complete by Janu­ary 25, 2021. Id.

Second, the Commerce Depart­ment must provide 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). By stat­ute, the Commerce Depart­ment was to provide each state with this inform­a­tion by April 1, 2021. foot­note8_i0xiksp 8 13 U.S.C. § 141(c). In past decades, the Census Bureau distrib­uted the inform­a­tion to states on a rolling basis, start­ing in mid-Febru­ary of years ending in one; states with earlier redis­trict­ing dead­lines received data first.

The Census Bureau has indic­ated that it expects to provide the pres­id­ent with appor­tion­ment counts by April 30, 2021; to make untabu­lated redis­trict­ing data (that states with the neces­sary tech­nical abil­ity could aggreg­ate into a proper format) by August 16, 2021; foot­note9_y3g4gxq 9 The Census Bureau has not typic­ally distrib­uted raw data during past censuses. and to deliver P.L. files to the states by Septem­ber 30, 2021, in a single national deliv­ery rather than on a rolling basis.

One brief note: this analysis uses the Septem­ber 30, 2021, date to assess state dead­lines because it is unclear whether states will be able and will­ing to format the raw data made avail­able in August 2021.

The Impact of Changes to the Data Deliv­ery Sched­ule

Changes to the sched­ule for deliv­er­ing redis­trict­ing data to states will require states to adjust their redis­trict­ing timelines to avoid having to use court-drawn maps for upcom­ing elec­tions. Some states have already made the neces­sary accom­mod­a­tions; others are still in the process of doing so. This analysis reflects only conclus­ive changes made by states as of April 16, 2021. Any subsequent adjust­ments are not reflec­ted.

Neces­sary changes may extend beyond redis­trict­ing dead­lines. Some states may also have to adjust their candid­ate filing or qual­i­fic­a­tion peri­ods and/or move primary dates to have extra time to complete map-draw­ing. General elec­tions will also be affected in the two states with odd-year elec­tions.

In addi­tion to redis­trict­ing dead­lines, 10 states have fixed stat­utory or consti­tu­tional dead­lines for public input or parti­cip­a­tion in the redis­trict­ing process that will be affected by changes to the redis­trict­ing data deliv­ery sched­ule.

Part I provides a summary of the changes needed. Part II provides state-specific inform­a­tion.

End Notes