The high-stakes process of redrawing the nation's voting maps should already be underway.
There's just one problem: The data states need isn't ready yet.
The U.S. Census Bureau announced last week that the population data necessary for redistricting, which occurs after every decennial count, would be again delayed until Sept. 30, citing issues related to the Covid-19 pandemic. This will give states just less than half the time to tackle the complicated task than in other years, as the process must be completed before each state's primary filing deadline so candidates know which voters they should be courting.
“It already was set to be really challenging and now it’s going to be on steroids,” said Michael Li, a redistricting expert and senior counsel at the Brennan Center for Justice at New York University School of Law.
Complicating matters, voting rights advocates have said, is that this will be the first redistricting cycle since the Supreme Court eliminated the preclearance requirement of the Voting Rights Act that required states with a history of racial discrimination to prove to the Department of Justice that their electoral maps weren't drawn to dilute the power of voters of color. The shortened redistricting window leaves less time to challenge maps in the courts as discriminatory, these advocates said.
The political implications are potentially enormous. The Democratic Party currently controls both chambers of Congress, as well as the White House, but Republicans control far more of the redistricting process that could decide who returns to Washington after the 2022 midterms. This is because Republicans control the majority of state legislatures, where the bulk of the map drawing happens.
“Republicans could easily gerrymander themselves into a majority [in the House of Representatives] just out of Texas, Florida, North Carolina and Georgia,” Li said.
But Justin Levitt, an election law expert and professor at Loyola Law School, argued that correct data is more important than timely data — and that the elimination of preclearance will ultimately have a much bigger impact.
“There’s no questions, it’s going to be disruptive," Levitt, who worked on voting rights cases at the Department of Justice during the Obama administration, said of the delay. “But I don’t actually think it’s a disaster."
Levitt criticized the Trump administration's handling of the all-important count, saying it “cut some corners, in addition to the intentional sabotage."
"I’m actually much happier the Census Bureau has decided to do this right than to do it quick," Levitt said.
Every decade, coinciding with the census, states redraw their legislative maps to better reflect where people live. In most states, lawmakers draw the maps, though a handful use commissions. The stakes are high: Some states will gain congressional seats, while others will lose them. These boundaries are then set for 10 years, barring intervention by the courts, and determine who votes where.
Those boundary lines can exacerbate partisan divide among the lawmakers voters send to Washington, too. Gerrymandering, or drawing district lines that benefit one party over another, can create safe seats rather than setting the stage for competitive general elections. Experts liken it to allowing politicians to pick their voters, rather than voters picking their representatives.
While both parties gerrymander, Republicans have historically been a lot better at it. Democrats have aimed to up their game in this arena, jockeying for control or at least a seat at the map-drawing table that can force some compromise in the drawing process. Former Attorney General Eric Holder has decried the practice of gerrymandering and is heading up a redistricting group on the left that opposes gerrymandering.
While the Supreme Court made clear in a 2019 ruling that partisan gerrymandering does not violate federal law, racial gerrymandering is still illegal and there's often overlap.
“It’s impossible to gerrymander in the South without discriminating against communities of color,” Li said.
Ten states are expected to lose a U.S. House seat this year due to population changes, while Texas is expected to earn three more. Florida will likely add two seats, while five other states including Arizona and North Carolina are expected to gain one each.
In pre-pandemic years, states would have received data from the Census Bureau on a rolling basis in February and March. The bureau had said in January that it would release all the data by April 30, before delaying the data release until the fall.
Many states will need to seek judicial or legislative extensions, since the time crunch will keep them from meeting state deadlines to complete their own redistricting processes. Filing deadlines for 2022 primaries are fast approaching.
Virginia lawmakers have suggested running some state elections under the old maps thanks to the delayed data, while West Virginia’s secretary of state publicized a letter to President Joe Biden urging an earlier release of the data and arguing the delay was an “undue hardship” on the voters and politicians.
Li and other advocates say states with single-party control of the map-drawing process and increasingly diverse populations — like Georgia, Florida, Texas and North Carolina — are where this condensed process could create the most headaches.
“The reality is in states like Texas and the South, the key to having fair maps is the ability to litigate, because the maps that come out of the Texas Legislature are never the final maps. They always are changed by the courts,” Li said. “The Texas Legislature has been told for five decades that they have gone too far, so that ability to litigate is crucial.”
Typically in Texas, Li said, the maps would be drawn by June, giving advocates six months to litigate before the filing period for next year’s primary hits.
Levitt said he doesn’t think courts will be tricked by lawmakers pushing bad district maps through and noted that primaries can be moved, as many were during the 2020 pandemic primary season.
Some are urging states to begin the process of redistricting now, even without the data in hand.
“Although the Census Bureau’s new timeline for releasing redistricting data will pose challenges, states should now begin taking steps to ensure they conduct a transparent and fair redistricting process,” Holder said in a statement urging virtual hearings for public input and announcing that he’d oppose any efforts to use last decade’s maps.
Li also said the delay could offer a unique opportunity for Democrats, who have advocated for voting rights bills, including the John Lewis Voting Rights Restoration Act, which would create a modernized preclearance system and add redistricting rules.
“There’s a window of time for Congress to act. If they do that, it could be transformative. It could be the one thing that’s the key to ensuring fair maps, that elections still matter,” Li said. “Otherwise, you’re going to see maps rigged in such a way that the result is predetermined.”