By Ben Williams | Vol . 28, No. 8 | March 2021
A QUICK LOOK INTO IMPORTANT ISSUES OF THE DAY
In normal times, redistricting happens during the first legislative session after the census. Legislative chambers and caucuses negotiate among themselves and with one another, receive input from the public and, ultimately, adopt new maps. But these are not normal times. The Census Bureau is several months behind schedule in releasing the necessary data to draw the lines. The silver lining, though, is that states have several more months to ensure they have the processes in place they think work best in their state. These come in two flavors: those that address issues with states’ own constitutional deadlines and those that alter how the state redistricts.
As for deadlines, 42 states have deadlines in their state constitutions or statutes by which they must redistrict. Many of these deadlines were adopted under the assumption that the granular data used to redistrict—the P.L. 94-171 file from the Census Bureau—would be released according to the schedule set in federal statute. With the bureau well behind schedule, it could be late summer or early fall before states receive this data. Some states could change these deadlines to give themselves the time they need to draw maps without the task falling to backup entities or the courts. New Jersey amended its constitution in 2020 to give it an extra year to redistrict if the P.L. data is delayed, and New York is considering a similar constitutional amendment this year. If amending the deadline legislatively is no longer possible, states could seek relief from these strictures at their supreme courts, as California did in 2020.
Other Possible State Actions
While states await the release of redistricting data from the Census Bureau, they could consider the following procedural changes. Many of these would be hard to implement at this late hour, but could be done if the desire exists:
Also known as principles, criteria are state laws requiring districts be drawn based on specific goals. For decades, states have used traditional criteria such as compactness, contiguity and aligning district lines with preexisting political boundaries like counties and cities. Newer so-called “emerging” criteria include prohibitions on favoring or disfavoring a party or candidate, prohibiting the use of political data in redistricting, and drawing districts to increase competitiveness between the two major parties. While criteria are usually set forth in state constitutions, they can also be established in statute or in committee guidelines that are adopted for a specific redistricting cycle.
Handling Public Map Submissions
Over the decades, technological advances moved the process from colored pencils and maps the size of conference room tables to computers the size of conference rooms to desktop computers. As the pace of technological advancement accelerated, so did redistricting software, and today it’s possible to draw entire redistricting plans for free at several different websites. When this capacity is combined with an upswell in attention to the process, it’s no surprise the public expects to—and will—play an unparalleled role in redistricting this decade. These free redistricting websites permit users to export the plans they draw into files that can be attached to emails. To accommodate this, the Oklahoma Legislature, for instance, created a new legislative email address solely for receiving public input. Another option is to ask their redistricting software vendors to set up an online web tool where the public can draw and submit maps, something Utah did in the last cycle. The advantage of this latter option is that this website can be customized to the state’s specifications.
Backup Redistricting Mechanisms
When states cannot finish redistricting by their own deadlines either because of census delays or any other reason, the courts are the next step in many states. In some states, a backup mechanism, or commission, can (at least temporarily) keep the duty to redistrict out of court. States can consider creating backup commissions via statute. For example, Indiana has a backup commission for congressional redistricting in its statutes.
Jurisdiction for Court Challenges
Absent specific rules, redistricting litigation follows the normal track of other litigation. For a variety of reasons, some states set specific rules for state court redistricting challenges. Two options include designating a particular county or district court as the venue for all redistricting challenges or adding redistricting challenges to the list of topics under the state supreme court’s original jurisdiction. For example, North Carolina designates a special three-judge panel in Wake County (home of the state capital, Raleigh) as the venue for all redistricting challenges, with a right of direct appeal to the state supreme court. This mirrors the system used for some federal redistricting challenges.
The Census Bureau’s policy for its decennial enumeration is to count people as residing where they sleep. In the case of prisons, the bureau counts prisoners as residents as living at the prison itself. For a variety of reasons, some states believe prisoners should be counted—for districting purposes—as still residing at their last known address prior to their incarceration. Maryland and New York reallocated prisoners from the address listed in the census data files to their last known address for redistricting purposes in 2010—the first states to do so. In 2020, seven other states will join them in the practice, with still more possibly joining just as the window for this closes.
Possible Federal Actions
States aren’t the only entities considering redistricting legislation. Two separate bills relating to redistricting are pending before the U.S. House and Senate. One of these bills, known as the For the People Act (H.R. 1), would (among many other things) add a prohibition on redistricting to favor or disfavor a political party to drawing congressional districts and would require that all congressional districts be drawn by independent redistricting commissions. As written, these provisions would not go into effect until 2030, though this is subject to change. The constitutional power Congress cites as giving it the authority to pass this sweeping legislation is the Guarantee Clause of the U.S. Constitution, which Supreme Court precedent says is not justiciable by courts. If the Supreme Court were to follow its precedent, this bill—if adopted—could be immune from review by courts.
Congress is also considering a reauthorization of the Voting Rights Act, this time named after civil rights icon and former Georgia congressman John Lewis, who died in 2020. The bill, introduced in the last Congress and expected to be reintroduced in this congress, includes a new formula for determining which jurisdictions would be subject to the preclearance regimen found in Section 5 of the VRA. If adopted, this would mark the first time states have been subject to Section 5 since the old coverage formula was declared unconstitutional by the Supreme Court in Shelby County v. Holder in 2013.