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Census delays could squeeze courts’ review of House maps

Redistricting challenges may not be settled before 2022 elections

A sign urging people to complete the census sits in a planter on Main Street in Roswell, N.M. on Aug. 21. The pandemic has hampered the Census Bureau’s ability to finalize key data needed to redraw congressional and legislative maps.
A sign urging people to complete the census sits in a planter on Main Street in Roswell, N.M. on Aug. 21. The pandemic has hampered the Census Bureau’s ability to finalize key data needed to redraw congressional and legislative maps. (Bill Clark/CQ Roll Call file photo)

States will not get the key data to draw new congressional and legislative maps until September, the Census Bureau said Friday, setting up a race to draw new maps and fight over them in court before the 2022 midterms.

The latest delay could make it difficult for states to redraw House district lines before next year’s elections and leave little time for the expected court fights to play out, experts said. The Census Bureau has run into problems with finalizing census data after the coronavirus pandemic and decisions by the Trump administration hampered last year’s count.

For the first time, the agency missed its statutory end-of-year deadline to deliver population counts that would be used to apportion the 435 House seats among the 50 states. That information is not expected until the end of April. And more detailed population and demographic data — including race and ethnicity at the local level — is now expected in September, two months later than the original July estimate.

“We are acutely aware of the difficulties that this delayed delivery of the redistricting data will cause some states,” the agency said in a statement from James Whitehorne, the head of the agency’s redistricting and voting rights data office.

That puts the squeeze on both the line-drawing process and an anticipated wave of litigation over the new maps. Courts have altered the election calendar in previous cycles — a federal judge ordered Texas to delay its primary elections by two months in 2012 while a court challenge played out. There simply might not be enough time for those court fights to play out, however, before elections are held, said Michael Li, senior counsel for New York University’s Brennan Center for Justice.

“States may use that as an excuse to have a very rushed process  with little room for public input, and with little time for the maps to be challenged to the court,” Li said.

Li pointed out that court challenges could drag well into the summer of 2022, and if judges decide maps have to be redrawn, that might not happen before voters head to the polls in the fall.

“This redistricting cycle was already going to be hard, and now it’s just become harder,” Li said.

Struggle for election officials

Wendy Underhill, the director of the elections and redistricting program at the National Conference of State Legislatures, said the delay could make actually administering next year’s elections difficult.

“It’s always a little bit of a struggle, a race for election officials to get everything accurately determined and locked down for that election. We want voters voting on the right candidates,” Underhill said. “Any slack that might have been in the system is being used up by the late start.”

A few states, such as California and New Jersey, have a mechanism to either delay their redistricting or run legislative elections under old maps. New Jersey voters passed a constitutional amendment last year allowing for a two-year delay in legislative redistricting, allowing for legislative elections in 2021 under the old maps. California’s Supreme Court granted the state a four-month extension to its redistricting deadlines in a case last year.

Others, like Texas, will have to hold special sessions or other legislative fixes to draw maps before holding congressional primaries as early as March 2022. For some states the line-drawing power could shift because of the delay. In Illinois, a bipartisan commission could end up with the ability to draw state legislative lines, for example.

Both parties have beefed up their apparatus to fight over legislative maps in the last decade, including the National Democratic Redistricting Committee headed by former Attorney General Eric H. Holder Jr. Holder said in a statement Friday that he would oppose any effort for states to rush their maps through or avoid redistricting altogether.

“No state should use this new timeline as a pretext to hold 2022 elections on old maps because they think it would be politically advantageous or as an excuse for drawing maps in secret with no public input,” he said.

GOP expecting seats to shift

Meanwhile, the National Republican Campaign Committee has said redistricting — and the expectation that House seats may shift from blue states to red ones — is part of its calculus for winning control of the chamber next year. Following legislative elections last year, Republicans maintain control of the drawing of congressional maps in 18 states, including Texas, Florida and North Carolina, which are expected to gain seats.

“Despite the ongoing delays with census data, House Republicans are well prepared for every redistricting scenario. In the meantime, the NRCC remains focused on running competitive races throughout the country,” NRCC spokesman Michael McAdams said.

Congress may provide cushion

Congress appears to be preparing for the delay. Sen. Brian Schatz, D-Hawaii, said he intends to reintroduce legislation to extend the Census Bureau’s deadline for redistricting data to the end of September. The legislation, which was also introduced last Congress, also has the support of Alaska Republican Sens. Lisa Murkowski and Dan Sullivan.

“The Census Bureau should take all the time it needs to report its data and make sure every person is counted as mandated by the Constitution,” Schatz said in a statement.

Biden administration officials, as well as Commerce Secretary nominee Gina Raimondo, have signaled they would back the agency’s estimates of how long the census would take to finalize.

The agency said it would deliver the data in a single package for all 50 states, a shift from previous decades when it delivered data for states as it finished work. Whitehorne told reporters on a call Friday that the coronavirus pandemic scrambled census operations, which helped push the work back by months.

Whitehorne said the delays partially came due to the agency’s prioritization of apportionment data ahead of the redistricting work, which is usually done in tandem. He said the agency will start some of the delayed redistricting work on Feb. 19.

Stephanie Akin contributed to this report.

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