Every 10 years, the US government has taken a census of the country, then adjusted the number of Congressional seats for each state. After, states redrew the lines of House districts.
Now, in the midst of the pandemic, the Census Bureau is asking for more time to complete in-person counting, thus delaying the information given to the states for redistricting.
The hold-up could create a chaotic, state-by-state court drama next summer, amplifying the divides in the hyperpartisan political landscape.
If the past is any guide, there will be lawsuits — not just about how the lines are drawn, but who gets to draw them. Many states have laws that spell out who can create lines if the legislature cannot do so by a certain date. The lawmakers will no doubt say they should get the first crack at trying to do their work even if the census made it impossible to get data in time to do so.
“It’s not a question if there will be lawsuits, but how many and can they all get settled in time,” said Dave Wasserman, a redistricting expert at the nonpartisan Cook Political Report, of the pending situation in Texas and elsewhere.
An estimated 17 states are set to either lose or gain congressional seats as a result of the constitutionally mandated census. The 2020 Census began only weeks ago amid the coronavirus outbreak. While an estimated half of all citizens have responded either online or through the mail, the house-by-house census has been halted out of health concerns.
As it stands, the Census Bureau is planning to reopen offices in June and begin going door to door in August, a delay of several months. In its new proposal, the bureau said it wants to report its findings to the president on April 30, instead of Dec. 31. That information would then eventually get sent to Congress to approve how many congressional seats are allotted. Then street-level data needed by states to create districts would be given to them “no later than” July 31.
“We are obviously concerned about the health of the public and our employees. And we want to have as accurate of a count as possible and that means going into communities that have been traditionally undercounted,” said Jeff Behler, director of the New York Regional Census Center, a part of the Census Bureau that encompasses all of New England.
If Congress approves this change, it would cause delays that will be a problem for several states. Texas, for example, is projected to gain three seats, but the Texas constitution demands that new maps be drawn up before its Legislature adjourns in late May 2021.
Lawmakers in Illinois also face a state constitutional requirement that redistricting be completed before July 31 that year or the process automatically gets kicked to a bipartisan commission. The clock will be ticking in New Jersey and Virginia, too, which hold state legislative elections a few months later.
“People are only beginning to consider the implications of a delay and it is unclear if there is any sort of partisan advantage with a big delay,” said Kimball Brace, the president of Election Data Services, who advises several states and the Census Bureau on redistricting. “But what is clear is that this could be a very big deal next summer as states try to sort this all out.”
That could lead to lawsuits, especially in states where one party dominates all branches of government, like in Illinois or Texas. If the majority party is denied the opportunity to redistrict themselves and the matter is sent off to a nonpartisan commission or nonpartisan court, it could sue to stop the process. Conversely, the out-of-power party could also sue if the legislature continues to work after the deadline set by state laws or constitutions.
As for Massachusetts, state Representative Paul Mark, the chairman of the House Committee on Redistricting, said the state has a leg up on other states to act quickly on data, because the Redistricting Committee has been continually updating estimates from the Census Bureau for years.
“The hope was and remains that a four-year head start was going to have us in a good position to provide the public with the fair, open, and accurate process they deserve while operating in a relatively tight window,” said Mark, a Democrat from Peru. “I think we are going to be better positioned than any other state for the redistricting process.”
One state Brace advises is Rhode Island, the only one in New England set to undergo an intense redistricting battle. Under current projections, the state is set to lose one of its two congressional seats following this census. This could pit two Democratic incumbents — David Cicilline and Jim Langevin —against each other. One saving grace for them: one could run for governor, with Democrat Gina Raimondo term-limited in 2022.
Wendy Schiller, chairwoman of Brown University’s political science department, said she expects the Rhode Island Legislature will figure out maps in a special session if need be. That said, she believes losing a seat could be a positive development for Republicans locally.
“Cicilline and Langevin cover different issues and all of them matter to Rhode Island voters,” said Schiller. “The upside for Rhode Islanders is the potential to have a stronger Republican challenger for the one remaining congressional seat because they will be running statewide and that gives them a better chance at victory."
Some states could benefit from this year’s unusual and unstable census. Rhode Island, if it aggressively convinced residents to participate, could actually save both congressional seats. The state is on the bubble of losing its congressional seat by about 12,000 people. Montana, meanwhile, is on track to barely gain a second House seat should it show its projected gain of 2,000 residents.
In the end, one of the nation’s foremost authorities on redistricting said he believes that however small of a timeline state legislatures get next year to draw maps, lawmakers will figure it out.
“Nothing can focus a politician’s mind more than the makeup of their own districts,” said Justin Levitt, who worked on voting rights issues at the US Department of Justice and is now a professor at the Loyola Law School in Los Angeles. “However it gets done, I expect it will get done and that courts will give lawmakers some space to work past deadlines.”
“The real issue in the coming year may have more to do with making sure we have an accurate count in the first place,” said Levitt. “With this particular administration, all things seem to be on the table.”