June 26, 2020 HUMAN RIGHTS

A New COVID Challenge: Keeping Redistricting on Track

by Michael Li

The process of redrawing the boundaries of congressional and legislative districts each decade after the Census is time-pressed and abuse-prone under the best of circumstances. But in 2021 when maps are next due to be redrawn, the process is likely to be even more complicated and challenging because of the COVID-19 crisis. And, as in so many areas affected by the coronavirus, communities of color—who collectively were responsible for the bulk of the country’s growth last decade—may end up bearing the brunt. 

Delayed field operations have rippled into the redistricting process.

Delayed field operations have rippled into the redistricting process.

Gordon Johnson on Pixabay and Wikimedia

If 2020 had been a normal census year, hundreds of thousands of Census workers would already be in the field, knocking on the doors of those who hadn’t responded to the census. Counting would be wrapped up by August. States would then receive the detailed block-level population and demographic data they need to redraw maps in February and March 2021 (a deadline long set in statute).

But in March, public health concerns caused the Census Bureau to put a temporary halt to its massive, once-a-decade field operations. Field operations tentatively resumed in May in some parts of the country. However, because of the delayed start, the full process of trying to count every American is now expected to take until the end of October 2020, a process likely complicated by college closures and the dislocation of many Americans in hard-hit regions like New York. (And this assumes that there are no other problems, such as a second major outbreak of the virus this fall.)

Delayed field operations have rippled into the redistricting process. Because of the late start, the Census Bureau has asked Congress for authorization to push back the deadline for delivery of block-level redistricting data to states to July 31, 2021. If approved, as expected, that means redistricting would not start until a point when, in a normal cycle, the map-drawing process would already have been completed in most states and, in many cases, well past deadlines in state law for doing so.

Delays, however, will not relieve states of the obligation to redistrict. Once new population data comes out, states will have a constitutional obligation to draw new maps because data will show districts no longer satisfy the Constitution’s “One-Person, One-Vote” requirement. Preparing for that will require urgent action in many states to get the redistricting process back on track and to ensure that the delayed process remains as robust and inclusive as possible.

The complexity of the adjustments that will be needed will vary greatly.

For two states, New Jersey and Virginia, data delays will make it virtually impossible to have new maps in place for the state’s November 2021 legislative elections, unless the Census Bureau can figure out a way to get redistricting data to these states well before July 2021. Legislative terms in the two states expire in January 2022, and they may be forced, as a result, to take the unprecedented step of asking a court for emergency permission to use existing maps for upcoming legislative elections, with new maps being used in 2023 or for special elections in 2022.

For other states, the situation is less dire; but states will still need to figure out a way to redistrict, even if they have missed state law deadlines. If they don’t, courts will step in to draw new maps.

Righting the process will be most complicated in states that have designed their redistricting laws around the expectation (perhaps unwarranted in retrospect) that the Census would always occur on schedule. For example, California, Maine, New Jersey, New York, Ohio, South Dakota, and Washington have deadlines written into their state constitutions assuming the Census Bureau would deliver redistricting data around the same time each decade. Delaware, Hawaii, and Utah have similar statutory deadlines. Timetables in many of these states are thrown off if data is late by a month, much less four. While statutory deadlines are fairly easy to fix (though subject to potential gaming), in states with constitutional deadlines, executive action or judicial relief—or perhaps an emergency constitutional amendment—might be needed to prevent having courts draw maps.

Another 10 states have provisions in their constitutions or state law which require that redistricting take place in the legislative session after the “census year” or a similar formulation. In these states, redistricting will likely take place in a special legislative session, which will be prone to be less transparent and more rushed than redistricting in a regular session.

And eight states have deadlines for public input that require that draft maps be made available and public hearings be held well before data to draw maps will be available in 2021. These, too, could be pushed aside in the name of completing the process. Primary dates and election deadlines might also have to be moved to accommodate redistricting.

In other states, the changes will be easier and even minor, but the process still will be far shorter than in normal cycles, with less time for legal challenges to discriminatory maps.

The choices for states are unenviable. But like death and taxes, redistricting is inevitable. States have to figure out a way to get it done in ways that are fair, vigorous, and transparent. And advocates have to hold them to that.

Michael Li serves as senior counsel for the Brennan Center’s Democracy Program, where his work focuses on redistricting, voting rights, and elections.