2020 Census Delays and the Impact on Redistricting

11/10/2020

Alternative Text

Introduction

Note: The United State Supreme Court, on October 13, 2020, granted the Department of Commerce’s application for a stay which blocks the Northern District Court’s September 24 Order requiring the census count to continue through until October 31. The Supreme Court's ruling stops the order and allows the Commerce Department to end the 2020 census pending the Ninth Circuit's ruling on the matter.

The Census Bureau has announced that the self-response and field data collection operations for the 2020 Census will end on October 15, 2020. The statutory deadline for reporting the tabulation of the total population to the President is December 31, 2020, however, it’s still not clear when data for reapportionment and for redistricting will be released.

On April 13, 2020 , the U.S. Census Bureau had announced that both self-response and field data collection were delayed and would end by October 31 due to the COVID-19 pandemic. The April 13 announcement included a request to Congress for authority to delay the release of census data to be used for congressional apportionment by 120 days, to April 30, 2021, and census data to be used for redistricting by 120 days as well, to July 31, 2021.

Information provided below was developed with the requested delays in mind. It is unclear whether Congress will take action on the delays.

 

The U.S. Census Bureau on April 13, 2020, delayed its field operations by about 90 days due to the COVID-19 pandemic, and at the same time asked Congress for authority to delay the release of census data by 120 days. If granted, the delay would be the first in at least 100 years. The requested delay in releasing data stems from the delay in field operations and relates to two federally mandated deadlines:

  • 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. The request would delay this deadline until April 30, 2021.
  • Under current law, data to be used by the states for redistricting legislative and congressional seats is due to the states no later than March 31, 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. The request would delay this deadline until July 31, 2021.

Congress will decide whether to grant the request for these delays. Its considerations may include:

  • Whether the data release dates can be moved up without jeopardizing health and safety, or the quality and accuracy, of the data.
  • Whether the rollout of state data will occur over the course of six weeks leading up to the July 31, 2021, deadline, or if it needs to be statutorily set.
  • What impact these delays will have on the states.

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

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

Note that in most states, the regularly scheduled legislative session for 2021 is anticipated to end well before July 31.  

This webpage addresses the following topics each in its own accordion folder:

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, Section 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.

*Note: On November 3, 2020, the voters in New Jersey approved a constitution amendment. This amendment would add in a deadline date, of February 15, to receive the federal census data. If the census data arrives after February 15, redistricting would be delayed by two years and the previous maps would be used until the new maps can be drawn.

Even if census data is provided to these states as early as the middle of June, preparing for a November election is nearly impossible. These states might ask a court for relief, as Virginia did in the 1981 case of Cosner v. Dalton. Under this scenario, the state would hold elections under current maps in 2021, under 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, Cal Const, Art. XXI § 2).*
  • Colorado (Sept. 1, Colo. Const. Art. V, Section 48.2, Colo. Const. Art. V, Section 44.4).
  • Ohio (Sept. 1, Oh. Const. Art. XI, § 1 and Sept. 30, Oh. Const. Art. XIX, § 1).
  • South Dakota (Dec. 1, S.D. Const. Article III, § 5).
  • Missouri (Mo. Const. Art. III, § 3).
  • Maine (June 11, Me. Const. Art. IV, Pt. 1, § 3, Me. Const. Art. IV, Pt. 2, § 2, Me. Rev. Stat. tit. 21-A, § 1206).
  • Washington (Nov. 15, Wash. Const. Art. II, § 43).

In California*, Maine and Ohio, with relatively early constitutional deadlines, census delays present the challenge of amending their constitutions or seeking a remedy in court. In the case of California, there is a July 1, 2020, deadline for getting a constitutional amendment on the 2020 general election ballot, and the constitution cannot be amended without a vote of the people. Ohio will have specific requirements for seeking an amendment as well, if that is the route the state chooses to follow.

Colorado’s deadline is similar to California’s, but the 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)). This flexibility could permit Colorado to draw maps on an accelerated timeline and still comply with its constitutional deadlines.

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

*Please note: 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 California’s redistricting deadlines. The Commission is directed to approve and certify the final statewide maps to the Secretary of State by no later than December 15, 2021.

States With Statutory Redistricting Deadlines in 2021

  • Delaware (June 30, Del. Code Ann. Tit. 29, § 805)
  • 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 after the data is released.

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

  • Alabama (Const. Art. IX, Sec. 199).
  • Arkansas (Ark. Const. Art. 8, § 4).
  • Connecticut (Conn. Const. Art. III., Sec. 6).
  • Illinois (Illinois Const., Art. IV, § 3).
  • Indiana (Ind. Const. Art. 4, § 5, Ind. Code Ann. § 3-3-2-1, Ind. Code Ann. § 3-3-2-2).
  • Louisiana (La. Const. Art. III, § 6).
  • Massachusetts (ALM Constitution 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 (Okl. Const. Art. V, § 11A).
  • Oregon (Ore. Const. Art. IV, § 6, Or. 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. For states in this category where the legislature is full-time (Illinois, Massachusetts and Wisconsin) and can meet throughout the year, the delay in the release of data will 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. 

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 be in compliance with the constitutional deadline.

States With Constitutional Requirements for Redistricting to Take Place in the Year After Census Data Is Delivered

  • Alaska (Alaska Const. Art. VI § 10).
  • Idaho (Idaho Const. Art. III, Section 2).
  • 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, Section 3, N.C. Const. art. II, Section 5).
  • Pennsylvania (Pa. Const. Art. II, § 17).
  • Texas (Tex. 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, all 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 a special session 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.

States With Other Deadlines

  • Missouri’s legislative redistricting deadline is based on when census data is six months after the date of the appointment of commission members (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

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

While these states do not have a redistricting deadline in their constitution 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).
  • Maryland (Md. Const. art. III, Section 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 (NY CLS Const Art III, § 5-b).
  • Wyoming (Wyo. Const. Art. 3, § 48, for legislative redistricting).
  • Kansas (Kan. Const. Art. 10, § 1, May 2022, for legislative redistricting).
  • Kentucky (Ky. Const. § 33, April 2022, 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.

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 guidelines, the new census data release timing can be taken into account when drafting guidelines.
  • For states where the census data delays will 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 do this as usual practice already, such as New Mexico.

Additional Resources