Report 2020 Census Delays and the Impact on Redistricting

Introduction

Note: The Census Bureau ended the self-response and field data collection operations for the 2020 census on Oct. 15, 2020. The statutory deadline for the delivery of apportionment data was missed because of the delays cause by the pandemic and the anomalies found in the census data. The apportionment data was released on April 26. The Census Bureau released the PL data in the legacy format (no tables) on August 12 and the more user friendly P.L. data (with tables) by Sept. 16.

There are two federally mandated deadlines that are impacted by delays in releasing data:

• Under current law, data to be used for reapportioning districts in the U.S. House of Representatives is to be delivered to the president by Dec. 31, 2020 (13 U.S.C. 141). This data determines how many congressional seats each state will have for the following 10 years. 
• Under current law, data to be used by the states for redistricting legislative and congressional seats is due to the states no later than April 1, 2021 (13 U.S.C. 141). In previous decades, this data has been provided to the states on a rolling basis, starting at least six weeks prior to the deadline. 

In all states, a delay in the release of data compresses the timeline for redistricting. For some states, the requested delays would be uncomfortable; for others, delays would mean deadlines that are established in state constitutions or statutes would be impossible to meet. States that would have the most difficulty with delays include:

• Two states that have legislative elections scheduled in November 2021 (New Jersey and Virginia).
• Seven states with constitutional redistricting deadlines in 2021 (California, Colorado, Maine, Missouri, Ohio, South Dakota and Washington).
• Five states with statutory redistricting deadlines in 2021 (Delaware, Indiana, Iowa, Vermont and Washington).
• Thirteen states with constitutions calling for redistricting in the year after the census, effectively meaning in 2021 (Alabama, Arkansas, Connecticut, Illinois, Louisiana, Massachusetts, Michigan, Nevada, New Hampshire, North Dakota, Oklahoma, Oregon and Wisconsin).

States With Legislative Elections Regularly Scheduled for November 2021

Two states, New Jersey (N.J. Const., Art. IV, Sec. III, Para. 1) and Virginia (Va. Const., Art. II, Sec. 6), have legislative elections scheduled for November 2021. In previous decades, any states with November legislative elections have received their data earlier than other states so they could complete legislative redistricting in time for candidate filing.

On Nov. 3, 2020, New Jersey voters approved a constitution amendment to set a deadline of Feb. 15 to receive the federal census data in order to redistrict in advance of the regularly scheduled legislative elections in 2021. If the census data arrives after Feb. 15, redistricting could be delayed and the new maps could be adopted not later than March 1, 2022. The previous maps would be used until the new maps are in effect for the 2023 elections.

Even if census data is provided to Virginia by the statutory deadline of April 1, preparing for a November election would be difficult. Virginia might ask a court for relief, as it did in the 1981 case of Cosner v. Dalton. Under this scenario, the state would hold elections under current maps in 2021 and use the newly redrawn maps in a special election in 2022 and again during its regularly scheduled legislative elections in 2023.

States With Constitutional Redistricting Deadlines in 2021

• California (Aug. 15, Calif. Const., Art. XXI 2).
• Colorado (Sept. 1, Colo. Const., Art. V, Section 48.2; Colo. Const., Art. V, Sec. 44.4).
• Missouri (Mo. Const., Art. III, 3).
• Maine (June 11, Maine Const., Art. IV, Pt. 1, 3; Maine Const., Art. IV, Pt. 2, § 2; Maine Rev. Stat., tit. 21-A, § 1206).
• Ohio (Sept. 1, Ohio Const., Art. XI, 1 and Sept. 30, Ohio Const., Art. XIX, § 1).
• South Dakota (Dec. 1, S.D. Const., Art. III, 5).
• Washington (Nov. 15, Wash. Const., Art. II, § 43).

In California, Maine and Ohio, which have relatively early constitutional deadlines, census delays would present a challenge. These states could amend their constitutions to account for the delay or seek a remedy in court, as California did. On July 17, 2020, the California Supreme Court granted the legislature’s emergency petition and issued a peremptory writ of mandate for a four-month extension to state redistricting deadlines. On September 21, the California Supreme Court modified the earlier writ and extended California’s redistricting deadlines again. The Court order extended the deadline for releasing proposed maps for public comment from November 1 to November 15. And the deadline to approve and certify final maps from December 15 to December 27. Ohio has specific requirements for seeking an amendment, if that is the route the state chooses to follow.

Colorado’s constitution provides that “the commissions may adjust the deadlines specified in this section if conditions outside of the commission’s control require such an adjustment to ensure adopting a final plan.” (Colo. Const., Art. V, §§ 44.4(1), 48.2(1)). The constitution (Art. V, §§ 44.5 and 48.3) further provides deadlines of November 1 and November 15 for the Colorado Supreme Court to either approve the plans submitted or return the plans to the commission. In addition, the Colorado Supreme Court must approve final plans no later than December 15 and December 29 of the redistricting year.

South Dakota, with a Dec. 1 constitutional deadline, would likely consider a special session to undertake redistricting since its regularly scheduled legislative session is set to end in March 2021; it used a special session last decade.

States With Statutory Redistricting Deadlines in 2021

• Delaware (June 30, Del. Code Ann. Tit. 29, 805).
• Indiana (At the end of the legislative session, Ind. Code Ann. 3-3-2-1).
• Iowa (Sept. 15, Iowa Code 42.3).
• Vermont (Aug. 15, Vt. Stat. Ann. Tit. 17, 1905 - § 1907).
• Washington (Nov. 15, Wash. Rev. Code Ann. 44.05.100).

In these states, the legislature may choose to enact a new deadline for this decade to accommodate the delayed release of census data. Because regular legislative sessions in these states are completed before July 31, a bill in the regular session to extend the deadline would be required, along with calling a special session to take place after the data is released.

States With Constitutional Requirements for Redistricting to Take Place in the Year After the Census (2021)

• Alabama (Const. Art. IX, Sec. 199).
• Arkansas (Ark. Const., Art. 8, 4).
• Connecticut (Conn. Const., Art. III., Sec. 6).
• Illinois (Ill. Const., Art. IV, 3).
• Massachusetts (ALM Const. Amend., Art. CI).
• Michigan (MCLS Const., Art. IV, 6; Mich. Comp. Laws Serv. § 3.62; Mich. Comp. Laws Serv. § 4.261).
• Nevada (Nev. Const., Art. 4, 5).
• New Hampshire (N.H. Const., Pt. SECOND, Art. 9; N.H. Const., Pt. SECOND, Art. 26).
• North Dakota (N.D. Const., Art. IV, 2).
• Oklahoma (Okla. Const., Art. V, 11A).
• Oregon (Ore. Const., Art. IV, 6; Ore. Rev. Stat. Ann. § 188.125).

These states’ constitutions call for redistricting to take place in the year after the census is taken, not the year after the data is released. Thus, they call for redistricting to be completed in 2021. For states in this category, where the legislature is full time (Illinois, Massachusetts and Wisconsin) and can meet throughout the year, a delay in the release of data would compress the timeline. For the other states, where the regular legislative session is scheduled to be over before July 31, a special session is likely to be required to complete redistricting in 2021. 

On April 9, 2022, the Oregon Supreme Court granted the legislature’s petition to extend the state redistricting deadline by close to three months. The Oregon legislature has until September 27, 2021 to approve congressional and legislative maps. If the legislature fails to approve the state legislative maps by the new deadline, the Oregon Secretary of State’s will have until October 18, 2021 to draw those maps.  

North Dakota’s deadline requires that redistricting occur in the legislative session immediately following the census. While this typically means years ending in 1, North Dakota considers its legislative sessions to last two years, so redistricting could occur in 2022 and comply with the constitutional deadline.

States With Constitutional Requirements for Redistricting to Take Place in the Year After Census Data Is Delivered (2021 or 2022)

• Alaska (Alaska Const., Art. VI,  10).
• Idaho (Idaho Const., Art. III, Sec. 2).
• Louisiana (La. Const., Art. III, 6).
• Montana (for congressional redistricting, if the state is awarded a second seat in the U.S. House; legislative redistricting is not required to be completed until 2023; Mont. Const., Art. V, 14).
• North Carolina (N.C. Const., Art. II, Sec. 3; N.C. Const., Art. II, Sec. 5).
• Pennsylvania (Pa. Const., Art. II, 17).
• Texas (Texas Const., Art. III, 28).
• *Utah (Utah Const., Art. IX, 1).
• Wisconsin (Wis. Const., Art. IV,  3).

These states’ constitutions direct that redistricting be undertaken in the next session after the delivery of census data, rather than when the census is taken.

In preparation for the 2022 general election, these states would need to prepare districts in time for candidate filing dates prior to 2022 primary elections. These deadlines are typically in the spring of even-numbered years.

Pennsylvania’s legislature can meet year-round and could address redistricting in the fall of 2021.

The other states could redistrict in 2022, rather than as expected in 2021, or hold special sessions in the fall of 2021.

Texas’ legislature is biennial and does not have a regularly scheduled session in 2022, so the next regular session after census data is released would be in 2023. A special session may be a solution.

*In March 2021, Utah enacted HB 413, which extended the deadlines for the state's advisory commission by three months among other changes.

States With Other Deadlines

• Missouri’s legislative redistricting deadline is based on when census data is delivered. Within six months after the appointment of the Senate Redistricting Commission and House Redistricting Commission, those commissions shall file a final statement of the numbers and the boundaries of the district (Mo. Const., Art. III, 2; Mo. Const., Art. III, § 7).
• Hawaii’s deadline is based on the date its commission members are certified; in effect, this would be September 2021 (HRS Const., Art. IV, 2).

States With No Mention of Redistricting Deadlines in the Constitution or Statutes

• Arizona
• Georgia
• Nebraska
• New Mexico
• Rhode Island
• South Carolina
• Tennessee
• West Virginia

While these states do not have a redistricting deadline in their constitutions or statutes, all states need to prepare districts in time for candidate filing dates for 2022 primary elections. These deadlines are typically in the spring of even-numbered years.

States With Redistricting Deadlines in 2022

• Florida (Fla. Const., Art. III,  16, for legislative redistricting).
• Kansas (Kan. Const., Art. 10, 1, May 2022, for legislative redistricting).
• Kentucky (Ky. Const. 33, April 2022, for legislative redistricting).
• Maryland (Md. Const., Art. III, Sec. 5, for legislative redistricting).
• Minnesota (Minn. Const., Art. IV, 3, 12; Minn. Stat. § 204B.14).
• Mississippi (Miss. Const. Ann. Art. 13, 254; Miss. Const. Ann. Art. 4, § 36; Miss. Code Ann. § 5-3-93; Miss. Code Ann. § 5-3-123).
• New York (N.Y. CLS Const., Art III, 5-b).
• Wyoming (Wyo. Const., Art. 3, 48, for legislative redistricting).

Some states’ constitutions call for redistricting in the second year after the census is conducted; redistricting may be the first order of business when their legislative sessions begin.

New York voters will decide in November 2021 whether to approve a proposed amendment to the state's constitution. The amendment would, among other things, move up the state's redistricting deadlines. 

What States May Consider When Facing Census Delays

For states with constitutional deadlines:

• Amending the constitution is an option (which has its own deadlines and hurdles).
• The state could file a lawsuit for relief.

For states with statutorily set deadlines, setting a new deadline is an option.

In states where a deadline is set each decade by the adoption of rules or guidelines, such as Georgia, this year’s data release timing could be considered when drafting those rules or guidelines.

For states where census data delays would make it difficult to complete redistricting before candidate filing deadlines for the state primary:

• Either the primary date or the filing data could be moved (which has its own hurdles and consequences).
• Where permitted, the state could hold a special session for redistricting; some states, such as New Mexico, do this as usual practice already.

How States are Responding to Census Delays

With census delays impacting all states, some have sought or enacted policy changes to ensure compliance with their redistricting deadlines. The following is a running list of these state changes:

4/09/2021—Oregon Supreme Court moves the state’s redistricting deadlines for both the legislature and the backup mechanism (Secretary of State) to September 27 and October 18, respectively.

2/25/2021—Oklahoma House and Senate release guidelines for redistricting indicating the legislature will use ACS data to draw state legislative districts in light of census delays.

11/03/2020—New Jersey voters approve a constitutional amendment to alter the state’s redistricting deadlines. Under the new framework, new districts will only be used for year ending in 1 elections if the Census Bureau delivers P.L. 94-171 data to the state after February 15 of the year ending in 1.

7/17/2020—California Supreme Court unanimously extends the state’s redistricting deadlines. The extension is variable, measured by the length of time between the Census Bureau’s statutory deadline to deliver P.L. 94-171 data and when said data is actually delivered to California. Thus, if the Bureau delivers data to the state five months late, the state’s deadlines are extended by five months.

Legislation Relating to Census Delays

Below is a list of state legislative actions related to redistricting deadlines, primary elections, and session extensions.

Litigation Relating to Census Delays and the Census Generally

Below, listed with most recent action at the top, are cases related to the census delays, differential privacy, and census counts.

Alabama v. Raimondo (2021)

Status: Pending, U.S. District Court for the Middle District of Alabama, Eastern Division

Alabama filed a lawsuit challenging the U.S. Census Bureau’s use of differential privacy and the delayed release of 2020 census data. The complaint alleges the use of differential privacy, a mathematical method that would inject noise to the data, would skew the bureau’s population tabulations. The plaintiffs further argue that the use of differential privacy is unconstitutional. If successful, the suit would prevent its use by the bureau. Additionally, the plaintiffs are asking the court to force the Bureau to deliver redistricting data to states by the statutory deadline—or, alternatively, stop the Bureau from delaying the release of data beyond the earliest possible date the Court determines reasonable. 

Ohio v Coggins (2021)

Status: Pending, U.S. District Court for the Southern District of Ohio

Ohio’s attorney general filed a lawsuit challenging the U.S. Census Bureau’s decision to push back the release of 2020 census data. The complaint alleges that the release of redistricting data by Sept. 30, rather than its statutory deadline, will irreparably harm the state, and asks that the bureau comply with the statutory deadline. Under its constitution, Ohio’s redistricting commission must finalize its state legislative districts by Sept. 1, 2021.

A U.S. District Court has dismissed the Ohio lawsuit that challenged the delayed release of redistricting data and asked that the bureau comply with the April 1 statutory deadline. The court held that the state of Ohio lacked standing, and the court didn’t have jurisdiction to address the questions presented in the suit.

National Urban League v. Ross (2020)

Status: Pending, U.S. District Court for the Northern District of California

National Urban League and others challenged the U.S. Census Bureau’s census shortened timelines to deliver the apportionment and redistricting data.

On Feb. 3, 2021, Judge Koh executed an order that the bureau will not under any circumstances report the results of the 2020 Census to the Secretary of the Department of Commerce, the president, and Congress, before April 16, 2021. This schedule is equivalent to the COVID-19 plan timeline for data processing sought by Plaintiffs’ Second Amended Complaint.

Alabama v. U.S. Department of Commerce (2018)

Status: Pending, U.S. District Court for the Northern District of Alabama

Alabama filed a lawsuit challenging the U.S. Census Bureau’s inclusion of all residents, regardless of citizenship, in the decennial census counts for apportioning congressional seats and electoral college votes. Alabama alleges that apportionment predicated on 2020 census numbers, under the Bureau’s current policy, would re-allocate a congressional seat and electoral vote from Alabama to another state.