How The Delayed Census Has Affected Redistricting

The coronavirus pandemic complicated many facets of life over the past year, but it slowed down one especially important undertaking: the 2020 census. That’s especially significant for upcoming elections because it has dramatically shortened the redistricting process, or the amount of time states have to draw new state legislative and congressional district lines. Typically, apportionment data is released at the end of the census year, but this time it slid from late December 2020 to April 26, and the delivery of in-depth redistricting data has now been pushed back to mid-to-late August.

These delays in the redistricting process are playing out differently across the U.S., as each state has its own rules, but about half of all states are in a bit of a jam when it comes to drawing new congressional or state legislative maps. That’s because they: 1) hold state legislative elections in 2021 and must have newly drawn maps as a result; 2) have some sort of constitutional or statutory deadline this year that requires them to have new maps drawn; or 3) have deadlines based on the census that could be interpreted as requiring them to redistrict by the end of 2021, per the Brennan Center for Justice, which is tracking redistricting delays caused by the census.

To be sure, not all states face impending deadlines, and a state’s rules for state legislative and congressional redistricting can differ, which means a state can be included in multiple categories. A fair number of states — 11 for state legislative districts and six for congressional districts — have deadlines tied to the actual publication or receipt of redistricting data, and that gives many of them comparably more leeway. This is even more true for the 16 states that don’t have to draw state legislative lines until 2022 or have no set state legislative deadlines at all, and the same goes for the 26 states that have no fixed deadlines for congressional redistricting (many are the same states with no deadlines or later ones for state legislative districts). 

But the states that are up against looming deadlines have tried a number of different tactics to buy more time, including asking state courts to extend deadlines for redistricting, using other population data to draw their maps, or, in the case of New Jersey and Virginia, the two states with state elections this year, even delaying the redistricting process. Ultimately, though, it is largely up to the states to handle the delays around redistricting: Some states will use old maps, while others will draw new maps with old data. All of this will have consequences, as states now scramble to decide their political futures in a decidedly haphazard process.

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New Jersey and Virginia have been hardest hit by the delays, as they’re the only states that hold elections for their state legislatures in 2021. Their redistricting commissions simply didn’t have enough time to remap their legislatures ahead of this year’s elections, so each state has opted to hold these contests under the current lines. This has political ramifications in each state, in terms of which party stands to benefit.¹

In Virginia, for instance, the old lines could help Republicans this November because much of the House of Delegates map was originally drawn as a Republican gerrymander.² A quarter of the map changed after a federal district court threw out part of the map as a racial gerrymander in 2018, but much of the map could still benefit Republicans in an off-year election even though President Biden carried 60 of 100 House seats in 2020, according to Daily Kos Elections. Additionally, the current lines can’t account for population growth since 2010, predominantly concentrated in Democratic-leaning Northern Virginia.

New maps for post-2021 elections will come down the pike soon enough, though. Virginia’s commission will begin drawing lines after getting redistricting data in August, and it could send maps to the state legislature for an up-or-down vote in October, potentially making redistricting an issue during the final stretch of the 2021 campaign. The new maps will come too late to be used in time for the 2021 election, but even though the next state election doesn’t happen until 2023, it’s possible a state or federal court could order Virginia to hold special elections in 2022 for all House seats under the new lines put in place later this year. (There’s precedent for this, too. A federal court compelled Virginia to hold elections in three straight cycles — 1981, 1982 and 1983 — after the legislature struggled to redistrict after the 1980 census.)

New Jersey’s legislative elections have less drama than Virginia’s, thanks to the Democrats’ double-digit edge in seats in both chambers. There’s also been more certainty about how the redistricting process will unfold, as voters passed a constitutional amendment last November that allowed for a redistricting delay if census data wasn’t received by February. Republicans are unhappy with the lack of new lines for the state legislature elections, arguing that keeping the old lines will make it even easier for the Democrats to retain their large majorities, but they’ll have to wait to try and achieve a more favorable map until New Jersey takes up the redistricting process later this year.New Jersey’s redistricting process uses similar but separate bipartisan commissions to draw both the state and congressional maps, with an even number of Democrats and Republicans on each commission, along with one additional member who could break a potential tie. The tie-breaker can favor either party; in the last redistricting cycle, the Republican plan won out in the congressional commission, while the Democratic plan won in the state legislative commission.

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There are 21 states that have constitutional or statutory deadlines with fixed dates or ones tied to the census year for state legislative redistricting, and 12 with similar timelines for congressional line-drawing, and such laws will require these states to meet at least some redistricting deadlines in 2021. At least two states that fall into this category, Illinois and Oklahoma, haven’t let the delays slow them down. They’ve already drawn final (or mostly final) maps for their state legislatures, which isn’t that surprising when you consider that one party has full control over the redistricting process in each state. 

In Illinois, new maps had to be drawn by June 30 or a bipartisan commission would have taken over the process. Democrats, who hold supermajorities in both houses, desperately wanted to avoid this outcome, so Democratic Gov. J.B. Pritzker signed off on new maps in early June that lawmakers drew using American Community Survey data instead of 2020 census data. This decision has already precipitated lawsuits from groups — including the state GOP — which claim that ACS data is not a permissible stand-in for census data. This raises the possibility that federal courts could agree with the plaintiffs and throw out the new maps.

Oklahoma’s legislature also needed to pass new maps before the end of its legislative session this spring to avoid sending the mapmaking process to a bipartisan commission. So like Illinois’s legislature, Oklahoma’s also employed ACS data to draw new lines and passed them in May, with the caveat that lawmakers might amend them in a special session after receiving full redistricting data. Unlike in Illinois, though, Oklahoma’s maps passed nearly unanimously with bipartisan support (although Democrats hold very few seats in either chamber). Still, the maps are fairly advantageous to the GOP, although Oklahoma is such a red state that Democrats would be hard-pressed to win many races even with a more favorable map.

Meanwhile, the dominant party in New York is taking a different approach than those in Illinois or Oklahoma, as Democrats there are trying to change the actual rules around redistricting to their benefit. Presently, an independent commission controls the redistricting process in New York, and a two-thirds majority is required in the legislature to pass new maps or slightly alter them when the same party controls both houses in the legislature, as Democrats do, which was expected to encourage bipartisan cooperation. But if voters back a constitutional amendment this November that the state legislature has worked to put on the ballot, the support needed to pass a commision plan would be lowered to a simple majority, or 60 percent if the legislature rejects the commission’s maps. That in turn would make it easier for Democrats, who hold a two-thirds majority in both chambers, to control the redistricting process. It would also move up the date for the commission to file its final plans from Jan. 15 to Jan. 1, although the commission would still have to submit its initial drafts in mid-September or as soon as possible after that time.

As for the other states up against fast-approaching deadlines, many have passed laws to shift those deadlines, or they plan to have their state legislatures reconvene later this year to make maps. For instance, Utah passed a law in March that pushed back the deadline for the state’s advisory redistricting commission to hold mandatory public meetings from Aug. 1 to Nov. 1, while Vermont gave its legislative apportionment board more time with an April law that moved the deadline for map proposals from July to no more than 90 days after redistricting data is released. And the state legislatures in Alabama, Delaware, Indiana, Nevada and South Dakota will all gather again later this year to redraw their state legislative and/or congressional lines.

In other states, the courts have either stepped in to push back deadlines for redistricting or could do so soon. Last year, for instance, the California Supreme Court extended the deadline for the state’s independent redistricting commission to draw state legislative and congressional maps from Aug. 15 to next February. Similarly, the Oregon Supreme Court announced in April that the state legislature has until Sept. 27 instead of July 1 to complete the redistricting process for both state and congressional districts.⁴ State legislatures or election officials in Hawaii, Maine and Michigan have also asked their courts for similar relief so their redistricting commissions or legislatures have more time; based on the expected mid-August release of data, Hawaii and Maine, in particular, are in danger of not meeting their current deadlines. 

Ohio, also under the pressure of an encroaching deadline — the state’s redistricting commission needs to complete state legislative maps by Sept. 1, while the state legislature has to finalize the congressional map by Sept. 30 — has taken a more drastic approach: It sued the U.S. Census Bureau over the delays. But the state did settle on an agreement with the agency: Ohio will drop the suit if the Census Bureau delivers the data by Aug. 16.

As for the states with deadlines tied to the release of redistricting data — 11 for state legislative districts and six for congressional districts — many have far more flexible timelines than the states discussed above, but some could still experience headaches. For instance, Iowa’s nonpartisan Legislative Services Agency technically has until between late September and mid-November (depending on the timing of the release) to draw new lines for the state legislature to consider. The problem is the state’s new legislative maps have to be passed and sent to the governor by Sept. 1. And if the legislature fails to approve maps by then, the process could be thrown into the hands of the state Supreme Court. Meanwhile, Texas will likely address redistricting in a special session in September or October, but the state’s March 2022 primary might have to be delayed if the state can’t finalize its maps quickly enough.

And Colorado, one of those states with deadlines tied to the data release, thrust the 2022 redistricting cycle into a new phase last week when its independent redistricting commission released the first draft of a congressional map of any state. As with the Illinois and Oklahoma state legislative maps, Colorado used ACS data to draw its map following a Colorado Supreme Court ruling in early June that the commission didn’t have to wait for redistricting data to begin formulating maps. To be clear, these congressional lines will likely change some as the commission hears public comments, and the final map will use 2020 census data, but that hasn’t stopped election observers from opining about what the map might mean for the 2022 midterms. It’s also possible that other states will follow Colorado’s lead as they scramble to draw the lines that will decide their political futures.

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