A six-month delay holding up the data that states use to draw their legislative districts is mangling plans for the 2022 elections, as states discuss postponing primaries and navigating legal deadlines for redistricting that some are now almost certain to miss.
The Census Bureau announced in mid-February that redistricting data — the granular, block-level population counts that are used to draw equal-population political boundaries for state legislatures and the House of Representatives — would be released by Sept. 30 this year, well past the usual delivery date of March 31.
Many states are typically done with redistricting by then, not just starting it, and the delay puts states with early primaries and redistricting deadlines in a difficult position. At least nine states have constitutional or statutory deadlines to redraw their maps, according to the National Conference of State Legislatures, that won’t mesh with such a profound delay in the data delivery. Election officials in some states, such as North Carolina, have recommended moving back early primary dates to make more time for drawing new districts. And both political parties will have to grapple with how to recruit candidates to run for districts that may not exist until just before election season begins.
“Basically we’re sort of panicking, and we’re not really sure what we’re going to do,” said Jessika Shipley, the staff director of the Colorado’s state redistricting commission. “We don’t have the option of just waiting and doing this for the 2024 cycle.”
The time crunch will hit every state, but it’s particularly acute in states like Colorado with hard deadlines. Colorado’s state constitution requires new congressional maps to be drawn by Sept. 1. The commission is not fully formed yet, but Shipley said her staff is considering its options, including proposing legislation or turning to the state judiciary for a delay. “The other option is, I guess, to wait and get sued because we don’t meet our deadlines, and see what court weighs in at that point,” she said.
In a late February call with reporters, the National Republican Redistricting Trust, the GOP’s hub for data and legal efforts on redistricting, expressed concern that the delay could spur a cascade of litigation and force courts to take a significantly bigger role in the redistricting process.
“I am concerned that it’s going to increase the volume of litigation,” said Jason Torchinsky, an attorney with the NRRT who gamed out potential scenarios stemming from the census delays, including a proliferation of court-drawn interim maps. “So we could wind up with a series of court-drawn maps around the country for 2022, only to have legislatures reconvene to draw new maps for 2024.”
Even the broadest redistricting data from the Census Bureau — apportionment data, the topline population counts that determine how many House seats each state gets — won’t be released until the second half of April. These numbers, which were originally slated for release in December 2020, are most crucial to states that are on the cusp of losing or gaining a seat — and to the members of Congress in those states, who could suddenly find themselves standing without a chair when the music stops. The latest estimates show New York and Alabama battling for the last slot.
A few states have already taken action to give themselves more leeway, and they could serve as potential blueprints for their peers. California’s constitution requires that maps be drawn by Aug. 15, but the state legislature had already sought and received a four-month extension from the state Supreme Court — and it may require another. Other legislatures are also considering asking the judiciary for relief.
“We’re working with the attorney general’s office to see what options we may have,” said Maine state Senate President Troy Jackson, whose state has a June deadline for the legislature to draw maps. “We might have to go to the Maine Supreme Court to see if we could get an extension. The original delay was concerning, really concerning. But this one is obviously a real problem.”
“I think the court’s going to be sympathetic, if that’s the route we end up going, because they won’t be able to draw any maps without having any knowledge, either,” he continued. “Our constitution never took into account what we’re dealing with here.”
Another tactic adopted by Ohio last week was to file a suit in federal court that would compel the Census Bureau to release redistricting data on March 31 as legally required, arguing that the Bureau has unilaterally changed the deadlines codified in law and was harming the state. Ohio has a constitutional deadline to finalize its new maps in September.
Voters in New Jersey, which holds legislative elections in odd-numbered years, approved a state constitutional amendment in 2020 that pushes legislative redistricting back due to the delay, so the 2021 elections will be held on the old maps.
The six-month delay will have a downstream effect that will likely hold up candidate filing deadlines and primaries around the country. Illinois, Texas and North Carolina, which are likely to have March primaries and late 2021 candidate-filing deadlines, are in the biggest squeeze. And with Illinois on track to lose a seat, North Carolina gaining one and Texas slated to gain as many as three, all maps will change significantly, too.
“Keep in mind the logistics of this: This is not just the deadlines for drawing the maps,” Torchinsky said. “You also have to work backwards from the date of the election to allow time for both qualifying, through whatever the state processes are, plus allowing normal time for election administration like ballot printing.”
In North Carolina, Karen Brinson Bell, the executive director of the state board of elections, told a State House committee last week that her staff is recommending that the state’s primaries be pushed to May 3. Any change in the state’s election calendar would have to be approved by the state legislature.
And in Pennsylvania, legislative leaders have already floated the need to delay the state’s 2022 primaries, which are currently scheduled for mid-May.
“It is possible that the six-month delay could cause the final legislative plans to be completed well into the second quarter of 2022,” Brent McClintock, the executive director of the Pennsylvania Legislative Data Processing Center, a nonpartisan agency that assists the state legislature, said at a hearing last week.
Uncertain schedules for primaries and filing deadlines put candidates in a particularly uncomfortable situation. They will go months without actually knowing the lines of the districts they want to run in — a headache lawmakers in Pennsylvania know well.
In 2018, the state Supreme Court invalidated Pennsylvania’s congressional map, calling it an illegal partisan gerrymander. It didn’t impose a new map until February 2018, about three months before the primaries.
“When I ran my first time, we didn’t really know where the districts were. We ended up running several different races,” said second-term Rep. Chrissy Houlahan (D-Pa.). “We ended up doing petitions in two different districts. We ended up not knowing where to campaign. It’s really hard.”
In general, that dynamic could benefit incumbents in 2022, given that sitting lawmakers typically have sizable campaign accounts and a built-out staff. Challengers, meanwhile, may be reluctant to launch campaigns knowing that districts might change in ways that make them unwinnable or draw their communities into a different seat.
The compressed timeline will also make it harder for objectors to challenge new maps, either in court or by marshaling public opinion.
The National Democratic Redistricting Committee, led by former Attorney General Eric Holder, has been working for years to get voters more invested in blocking partisan gerrymanders so they can publicly pressure lawmakers into creating what they call “fair districts.”
In Florida, some Democrats are working to ensure a short redistricting timeline doesn’t interfere with their state-mandated process of gathering public input on the new maps proposed by lawmakers in Tallahassee.
“Making sure that the public engagement piece is there to react to what the legislature proposes to do is just as important,” said Florida state Rep. Ben Diamond, who is helping with Democratic redistricting efforts in the state.
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