Census delay throws some redistricting efforts into uncertainty

The process of rewriting electoral boundaries, ranging from local governments to congressional districts, will likely face a series of unprecedented challenges this year because of the delay in reporting the decennial census attributed to the COVID-19 pandemic and past court battles.

That was the consensus of a Feb. 18 panel of lawyers who participated in the program, “Redistricting: What Every Lawyer Should Know about the Decennial Process of Redrawing Electoral Lines, ”at the 2021 ABA Virtual Midyear Meeting. In addition, former U.S. Attorney General Eric Holder delivered opening remarks in which he said that the process of redistricting is more than “just about drawing lines on a map.”

The census and redistricting, Holder pointed out, are mandated by the U.S. Constitution, and lead to our “most sacred right; the right to cast a ballot.” Plus, he added, “fair maps in place… will determine the next decade of policy.”

With the U.S. Supreme Court declaring the principle of one-person, one-vote in the early 1960s, states and localities nationwide will begin later this year redrawing congressional, state legislative and local electoral lines based upon data from the 2020 U.S. Census. While highly politicized, the redistricting process is governed by several provisions of constitutional and statutory law, including the federal Voting Rights Act.

In addition, the census count impacts a host of federal financing formulas and is used by a range of marketing and corporate entities to make business decisions in terms of where people live and projections of their lifestyles and consumer spending patterns.

The COVID-19 pandemic slowed the nationwide census count last year, and the 2021 reporting of the results by the U.S. Census Bureau has been pushed back from April 1 to Sept. 30. With the former Trump administration also seeking to count only U.S. citizens rather than all “persons,” the legal delays also contributed to missed deadlines.

The situation, explained Terry Ao Minnis of the Asian Americans Advancing Justice, will make “redistricting even more difficult this go-around.”

Virginia and New Jersey, for instance, have general elections later this year and at least seven other states have constitutional deadlines approaching for redistricting. With states scrambling to meet these deadlines, she said, “this time crunch could be, will be, used by some… .to limit public participation” in redistricting decisions.

The panelists also explored the difficult legal questions raised when redistricting is motivated by favoring a political party or when it is principally guided by a desire racial imbalance because an ethnic group, such as Blacks vote predominately for one party. The U.S. Supreme Court has effectively ruled the first motivation is constitutionally permitted but the second is not.

Leah Aden, deputy director of litigation for the NAACP Legal Defense and Educational Fund, Inc., said the Voting Rights Act still “ensures that minority voters are not diluted in the line-drawing process” even though the 2013 U.S. Supreme Court decision in Shelby County v. Holder essentially gutted a pre-clearance provision. Now, the burden of proof falls on the U.S. Department of Justice or private parties to show that the change is discriminatory.

The panelists also praised efforts by some states to take redistricting decisions out of the hands of legislators, replacing them with nonpartisan commissions. This is to minimize what many criticize the decennial process as leading to blatant political gerrymandering.

Justin Levitt, a professor at Loyola Marymount University Law School and former deputy assistant attorney general in DOJ’s Civil Rights Division, noted that commissions reduce the inherent conflict of legislators drawing their own lines to protect themselves or friends in powerful places.

“There’s not one silver bullet that works for everywhere,” he said. “I look for a process that has meaningful independence … meaningful transparency and meaningful diversity. That can look a bunch of different ways.”

Moderator Thomas Saenz, president and general counsel of the Mexican American Legal Defense and Educational Fund, cautioned that because redistricting is an “inherently political process … you can’t take the politics out” of it. But he urged lawyers to get involved in litigation, education or other efforts to foster more public involvement in the process.

The program was sponsored by the ABA Commission on Hispanic Legal Rights & Responsibilities and was held on the second day of Midyear, which ends Feb. 22.