Census delay throws redistricting efforts into uncertainty

February 22, 2021

Every 10 years, following the decennial federal census, state and local entities quickly begin processing redistricting data to revise the electoral boundaries ranging from local governments to congressional districts. But not this year.

The U.S. Census Bureau has announced the March 31 statutory deadline to deliver redistricting data will be missed, now projecting delivery on Sept. 30. The result will likely be a scramble by some states to meet election and state constitutional deadlines and the possibility of legal action, according to a panel of lawyers at the 2021 ABA Virtual Midyear Meeting.

The U.S. Census Bureau is predicting a Sept. 30 delivery of redistricting data that was to be due March 31.

The U.S. Census Bureau is predicting a Sept. 30 delivery of redistricting data that was to be due March 31.

iStock / Getty Images / shelma1

The Feb. 18 program, “Redistricting: What Every Lawyer Should Know about the Decennial Process of Redrawing Electoral Lines,” explored legal issues related to the delayed census count, which has been attributed to the COVID-19 pandemic and past court battles. Under the U.S. Constitution, the census count is used every 10 years to allocate seats in the U.S. House of Representatives. It is also used to draw state and local electoral boundaries, for funding some federal programs and for business to project consumer spending patterns.

Former U.S. Attorney General Eric Holder, who delivered opening remarks, emphasized that redistricting is more than “just about drawing lines on a map,” but leads to our “most sacred right; the right to cast a ballot.” These maps, he added, “will determine the next decade of policy.”

The new September deadline likely means that Virginia and New Jersey, which have general state elections in November, will have to delay their state redistricting until after those contests. In North Carolina, several dozen city council elections could be postponed from fall to next year. Redistricting will be “even more difficult this go-around,” said panelist Terry Ao Minnis of the organization Asian Americans Advancing Justice.

Justin Levitt, a professor at Loyola Marymount University Law School, spoke in favor of redistricting commissions that reduce the inherent conflict that occurs when legislators draw their own lines to protect themselves or colleagues. Panelist Leah Aden, deputy director of litigation for the NAACP Legal Defense and Educational Fund, said the federal Voting Rights Act remains a tool to challenge racial discrimination in redistricting, but added the 2013 Supreme Court decision that struck down the pre-approval provision for changes in certain states has reduced its effectiveness.

Lawyers should get involved in litigation, education or other efforts to foster more public involvement in the redistricting process, said moderator Thomas Saenz, president of the Mexican American Legal Defense and Educational Fund. 

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