Some states are in a 'pickle': COVID broke the 'clockwork' of redistricting, putting calendars in chaos
DES MOINES, Iowa – State constitutions might not have been drafted with a global pandemic in mind.
For many states, the documents set specific dates by which lawmakers need to complete the once-a-decade redistricting process. But COVID-related delays have dragged out the U.S. census release, threatening to throw some states into constitutional chaos as deadlines look increasingly unrealistic to meet.
In some states, officials are in limbo, unclear how to even begin drawing new lines until they receive official data.
“It’s put a lot of states into a pickle,” said Ben Williams, a redistricting expert with the nonpartisan National Conference of State Legislatures.
If Iowa can’t get the job done in time, for instance, the state Constitution directs the Iowa Supreme Court to step in and draw new maps — a step the state hasn't taken in its modern history. But the court has declined to say what exactly it will do if Iowa misses the deadline, adding another layer of uncertainty to a process that will influence the balance of the state's political power for the next 10 years.
State laws written for a census that came out like 'clockwork.' But COVID broke the clock.
Typically, states would expect to receive the data they need to redraw congressional and legislative districts by April 1. This year, census officials didn't plan to release the data in the spring, instead now promising the data by Aug. 12.
Officials cited delays caused by the pandemic, which upended the process.
Even after the Census Bureau releases the data, state officials still have to parse it and then use the information to draw political districts that accurately reflect population. Then those maps have to be approved.
That has left state officials scrambling. Some are moving back primary election dates, while others are asking their state supreme courts for relief from deadlines. Others are using alternative data to draw maps instead of waiting for the final census numbers.
And a lucky few aren’t seeing much effect at all, Williams said.
“Unsurprisingly, when you have 50 states, you're getting a lot of variation in how they respond to the delays,” Williams said. “There are some states, like Kentucky, where their deadlines are so late that this really doesn't impact them at all — or the impact is quite minimal — whereas there are other states, like Iowa, where it's much more acute.”
Most states have deadlines for legislative redistricting — some are fixed in the calendar in years ending in one; others are more flexible, according to the Brennan Center for Justice. Eleven states have no deadlines for legislative redistricting.
Yurij Rudensky, a redistricting counsel in the Brennan Center for Justice’s Democracy Program, said many state laws were written expecting the census count would be completed like “clockwork.”
That has left many states in unprecedented territory as they decide how to address the kinds of delays posed by the COVID-19 pandemic.
He said the delay particularly affects states that have redistricting commissions and require significant public comment. More states are using redistricting commissions this decade as an effort to combat gerrymandering.
“I think those types of processes are going to be compressed,” he said. “Plus, there continue to be challenges due to the pandemic — especially with the delta variant flareup — about holding public gatherings and so forth.”
Most states have more time to create congressional maps than to set legislative maps. More than half of all states, 26, do not have a set deadline for redistricting their congressional seats.
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With constitutional deadlines looming, some states turn to courts for relief
Some states are seeking relief from constitutional redistricting deadlines — with mixed success.
In Michigan, which is considered home to some of the most gerrymandered districts in the country, the unprecedented delay in redistricting data means the state’s inaugural citizen-led redistricting commission is almost certain to miss the deadlines for proposing and adopting new maps.
Michigan’s constitution requires the commission to propose new maps by Sept. 17 and adopt them by Nov. 1 following at least 45 days of public comment and five public hearings.
The commission proactively petitioned the Michigan Supreme Court for a deadline extension, arguing that new districts could be thrown out if it failed to meet its deadlines. But the court denied the commission’s request in early July. Two justices said in a statement that it would be premature to delay the timeline for redistricting before the commission misses the constitutional deadlines. The commission plans to move forward with a delayed timeline for completing its work.
Other states have had more success. The state redistricting commission in California has twice asked that state's Supreme Court to extend its Aug. 15 constitutional deadline for drawing new legislative and congressional maps. The court granted an extension through the end of December, but the commission is asking for two more weeks to complete its work.
In Oregon, where the Democratic-controlled Legislature faced a July 1 redistricting deadline, the Oregon Supreme Court gave the Legislature until Sept. 27.
While some courts have not yet granted extensions, Rudensky said he doesn’t expect state justices to want to take over the process.
“I think most courts think that it’s a process that’s better played out in public through either commissions or the political branches of government,” Rudensky said. “My expectation would be that state courts would be happy to work with commissions and legislatures to move deadlines in ways that makes sense. I don't think state courts are eager to take the redistricting pen.”
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Other states didn’t wait for the final census data.
In the Illinois Legislature, which is controlled by Democrats, lawmakers drew new legislative maps using data from the Census Bureau’s American Community Survey, an annual survey of a random sample of households in every state. Gov. JB Pritzker signed the maps into law on June 4.
But the state is now facing lawsuits from Republican legislators and a Latino civil rights organization over whether American Community Survey data is an allowable source for drawing district lines.
“Using inaccurate, flawed data clearly deviates from one person, one vote," Illinois Senate Minority Leader Dan McConchie, R-Hawthorn Woods, said when the maps were signed in June.
The U.S. Constitution requires the once-in-a-decade census data to be used to determine congressional representation, but it doesn't specify what data should be used for legislative redistricting.
Still, using census data for legislative redistricting is standard practice.According to the National Conference of State Legislatures, about half of states explicitly require the use of census data for legislative or congressional redistricting.
In Oklahoma, lawmakers used American Community Survey data to draw and pass legislative maps to avoid bumping up against a constitutional deadline. The maps passed with nearly unanimous legislative support in May.
That state's Constitution requires lawmakers to approve new legislative maps within 90 working days of the beginning of the first session following the federal census in order to avoid sending the process to a bipartisan commission.
The Oklahoma Legislature will return for a special session in the fall to approve new congressional districts, which do not have a deadline, and possibly to tweak the state legislative maps with the updated data.
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Delays in maps could mean delays in elections
The delay means political candidates don’t know where they’ll be running for election next year.
Although Kentucky does not have a set constitutional deadline to complete the redistricting process, candidates for legislative office must file by Jan. 7, three days after the beginning of the 2022 legislative session. If a map is not in place before then, it could cause confusion over which district candidates must file in.
Democratic Gov. Andy Beshear could call a special session of the Republican-controlled Legislature to complete the process before next session, or lawmakers may work quickly early next year to pass the new map.
North Carolina is pushing back elections in towns and cities that have district-specific municipal races to early 2022.
“While delays to census data caused by the pandemic necessitate changes to local elections, decisions about local elections like these should involve more open discussion and public input,” wrote North Carolina Gov. Roy Cooper, a Democrat, in explaining his decision to let the new dates become law without his signature.
Texas Gov. Greg Abbott, a Republican, also called on his state Legislature to change the Texas 2022 primary schedule to account for the delays when it convenes for a special session.
The two states with 2021 legislative elections plan to bypass the problem by using old maps.
Virginia will use maps that were adjusted in 2019 following a Supreme Court decision. Meanwhile, the state’s redistricting commission is expected to provide maps to the General Assembly by the end of September.
New Jersey voters in November 2020 approved a constitutional amendment that specifies if the census data is given to New Jersey after Feb. 15 in any year, the redistricting process would be delayed and old voting maps would be used for 12 years, rather than 10.
Rudensky said as state officials adjust deadlines, they also need to adjust their processes in a way that still allows them to get the maps right.
“The important thing is to be proactive and to adapt to it best as possible,” he said. “To legislate around the situation, to seek guidance from state Supreme Court — and more than anything to communicate effectively with the public.”
Despite the delays, Williams said he expects most states to be able to finish redistricting by the year’s end.
“My guess is that by Jan. 1 of (next) year, barring some unforeseen court case or something that completely upends the process — or new legislation that I'm not envisioning at the moment — most states will have completed redistricting,” he said.
Contributing: Clara Hendrickson, Detroit Free Press; Associated Press
Follow reporter Ian Richardson on Twitter: @DMRIanR.
Follow reporter Stephen Gruber-Miller on Twitter: @sgrubermiller.
Follow reporter Brianne Pfannenstiel on Twitter: @brianneDMR.
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