For the last two and a half centuries, the only certainties in American life were death, taxes, and the census. Every 10 years, the Census Bureau would take a head count of every man, woman, and child living in the Union. Every 10 years, Congress and the states would use that count to reapportion almost every legislative seat in the country. And every 10 years, the quiet mechanisms that kept American civic life running smoothly have continued apace.
Then came the pandemic. Now the bureau says it will take another six months before it can deliver the proper data to state legislatures and redistricting commissions, pushing the process far beyond historical and legal deadlines. “The U.S. Census Bureau announced today that it will deliver the Public Law 94-171 redistricting data to all states by Sept. 30, 2021,” the bureau said in a statement on February 12. “COVID-19-related delays and prioritizing the delivery of the apportionment results delayed the Census Bureau’s original plan to deliver the redistricting data to the states by March 31, 2021.”
Under normal circumstances, the Census Bureau would have given its reapportionment count to Congress by December 31 of last year, then provided the rest of the data to the states by the legal deadline of March 31 this year. But the bureau warned that it wouldn’t be able to meet either of those deadlines, prompting it instead to release all of its data later this year. That delay threatens to upend how states redraw their legislative districts—and possibly throw the next cycle of House and state legislature races into chaos.
On Thursday, the chaos began. The state of Ohio filed a federal lawsuit, seeking to force the bureau to release its data more quickly. The Ohio Constitution lays out a specific timeline for when and how the state can redraw its maps, starting in December, that is now threatened by the bureau’s new plan. “By blocking the state from conducting redistricting using decennial census data, the Census Bureau’s decision prevents the state from conducting redistricting in the constitutionally preferred manner,” the state said in its complaint.
Many other states also have explicit deadlines written into their constitutions for when they can start and finish redistricting. Those deadlines were written under the assumption that census data would always be available on a reliable basis. Now they’re prompting legal headaches for states whose constitutions can’t be amended quickly or easily. California acted sooner than others and received permission from the state supreme court last July to extend its deadlines because of expected delays. State legislatures in Maine, Oregon, and elsewhere may also have to petition their highest courts for an exception of some kind.
Two states, Virginia and New Jersey, are in an even tougher spot because they hold off-year legislative elections later this year. In Virginia, where maps are drawn by a bipartisan commission, state officials are expecting to run this year’s elections under the existing maps. That could give a slight edge to the beleaguered state GOP as it struggles to survive amid demographic changes over the past 10 years. New Jersey passed a constitutional amendment in last November’s election that also allows it to use its existing maps until the census data is available.
The redistricting process in many states is now accompanied by a deluge of litigation by the two parties, voting-rights groups, and those jockeying for some sort of structural advantage. The delay in census data may only amplify those efforts. In Texas, where redistricting is normally done by a part-time legislature, Governor Greg Abbott may be required to call a special legislative session to accommodate the new Census Bureau timeline. If the legislature fails to act, the process instead falls to a five-member commission of top statewide elected officials. The Texas Tribune wrote in January that the delay “could provide a legal opening for Democrats to try to kick the legislative redistricting work out of Republicans’ hands and into the courts.”
In a report earlier this month, the Brennan Center’s Michael Li warned that this redistricting cycle would be “the most challenging in recent history,” thanks to partisan gerrymandering and the pandemic. “Expect a tale of two countries,” Li wrote. “In much of the country, newly enacted reforms and divided government will make it harder to force through partisan gerrymanders or racially discriminatory maps. In other states, however, there may be even greater room for unfair processes and results than in 2011, when the nation saw some of the most gerrymandered and racially discriminatory maps in its history.” The effect will be felt most heavily on communities of color and their right to representation.
An even greater storm could be on the horizon in Minnesota. MPR News’s David H. Montgomery raised the possibility earlier this week that there would be no new House districts drawn in the state before the 2022 election. “The Republican-controlled state Senate, [Democratic–Farmer–Labor Party]-controlled state House and DFL governor aren’t expected to be able to agree on new maps,” he wrote. “That could lead judges to draw new maps, as happened in 2012, 2002 and 1992.” A delay in census data could also push the process past the February 2022 deadline.
There’s also an added twist: Minnesota is expected to be one of the states that loses a House seat after the latest head count because of population changes. If the state goes from eight seats to seven, it wouldn’t be able to use its existing maps, either. A provision in federal law anticipated this possibility. If a state loses a seat but hasn’t redrawn its maps in time for the election, federal law requires that the state hold statewide at-large races for each seat. That raises the possibility that one party could win all seven of Minnesota’s remaining seats.
As Montgomery noted, this wouldn’t be the first time that Minnesota had to conduct an all-at-large race for House seats. A similar deadlock between the state legislature and the governor forced it in 1932. But there’s an added complication this time: In the intervening years, Congress also passed a law that effectively banned at-large elections in states with more than one House seat. (I previously wrote about that law while discussing proportional representation.) That provision, on its face, contradicts the one that would otherwise mandate at-large races in this scenario. So where does that leave Minnesota? The answer could lie with the judiciary, or perhaps one of the last places that advocates of fair elections would want it to end up: the Supreme Court.