Redistricting round-up: Census Bureau suggests data can be available to states, in legacy format, in August
On March 15, the U.S. Census Bureau announced that redistricting data could be made available to states in a legacy format by mid-to-late August 2021: “In declarations recently filed in the case of Ohio v. Raimondo, the U.S. Census Bureau made clear that we can provide a legacy format summary redistricting data file to all states by mid-to-late August 2021. Because we recognize that most states lack the capacity or resources to tabulate the data from these summary files on their own, we reaffirm our commitment to providing all states tabulated data in our user-friendly system by Sept. 30, 2021.” The legacy format would present the data in raw form, without the data tables and other access tools the Bureau will ultimately prepare for the states.
Earlier: On Feb. 12, the U.S. Census Bureau announced it would deliver redistricting data to the states by Sept. 30. This followed the Bureau’s announcement on Jan. 27 that it would deliver final apportionment counts by April 30. Under its original operational timeline, the Census Bureau was scheduled to deliver apportionment counts by Dec. 31, 2020, and redistricting data by March 31.
The census, reapportionment, and redistricting: The census is conducted every 10 years and kickstarts the entire redistricting process. Article I, Section 2, of the U.S. Constitution requires that congressional representatives be apportioned to the states on the basis of population. The U.S. House of Representatives has 435 members. Consequently, a state may gain representatives in the House if its population grows or lose representatives if its population decreases, relative to populations in other states.
Arizona, Colorado, Florida, Montana, North Carolina, Oregon, and Texas are all expected to gain between one and three representatives each. Meanwhile, Alabama, California, Illinois, Michigan, Minnesota, New York, Ohio, Pennsylvania, Rhode Island, and West Virginia are expected to lose representatives. These estimates are subject to change.
Federal law requires that congressional and state legislative districts have equal populations (as nearly as practicable). To meet this requirement, redistricting authorities rely on detailed Census Bureau data.
Alabama: State sues over census statistical methods, data delay
On March 11, the state of Alabama sued the U.S. Department of Commerce and the U.S. Census Bureau in the U.S. District Court for the Middle District of Alabama. Alabama Solicitor General Edmund G. LaCour, Jr. alleged the U.S. Census Bureau “intends to use a statistical method called differential privacy to intentionally skew the population tabulations given to States to use for redistricting.” This would prevent Alabama from having “accurate information about where Alabamians actually live.” LaCour also challenged the U.S. Census Bureau’s announced delay in delivering redistricting data to the states: “The Bureau has no authority to grant itself this extension and deprive Alabama of information to which it is entitled.” He asked that the court bar the use of the differential privacy method and direct the U.S. Census Bureau to deliver data to the states by March 31. On March 26, Judge R. Austin Huffaker, a Donald Trump (R) appointee, ordered a three-judge panel to consider the case.
- Case name and number: Alabama v. U.S. Department of Commerce (3:21-cv-00211).
Ohio: U.S. district court dismisses suit over census data delay
On March 25, Judge Thomas Rose, a George W. Bush (R) appointee, dismissed an Ohio lawsuit over the Census Bureau’s delay in delivering redistricting data to the states. Ohio Solicitor General Benjamin Flowers said, “The unavailability of decennial census data irreparably harms the State: the Ohio Constitution requires the State to use decennial census data during redistricting if the data is available, and allows the use of alternative data sources only as a second-best option. By blocking the State from conducting redistricting using decennial census data, the Census Bureau’s decision prevents the State from conducting redistricting in the constitutionally preferred manner.” Flowers sought “an injunction either prohibiting the defendants from delaying the release of Ohio’s redistricting data beyond March 31, 2021, or else requiring the defendants to provide the State with Ohio’s population data at the earliest date this Court deems equitable.” Rose denied the state’s request, writing, “The Court will therefore reject Ohio’s request for an order that pretends that the Census Bureau could provide census-based redistricting data by March 31, 2021. The Court cannot ‘order a party to jump higher, run faster, or lift more than she is physically capable.'” The state appealed Rose’s decision to the U.S. Court of Appeals for the Sixth Circuit, where it is currently pending.
- Case name and number: Ohio v. Coggins (U.S. District Court: 3:21-cv-00064; U.S. Court of Appeals: 0:21-cv-03294).
Oregon: State supreme court proposes condensed timeline for legislative redistricting
On March 10, Oregon House Speaker Tina Kotek (D) and Senate President Peter Courtney (D), on behalf of the Oregon Legislative Assembly, sued Secretary of State Shemia Fagan (D) in the Oregon Supreme Court, asking the court to extend the state’s constitutional deadlines on legislative redistricting. In their complaint, attorneys for the plaintiffs said, “[Unless] this Court (1) enjoins the Secretary of State from moving forward with apportionment and (2) extends the deadlines set forth in Article IV, section 6 (and allows reapportionment to occur in a special legislative session), reapportionment will either not be done at all or will be done using old Census data that will result in malapportioned legislative districts. Neither result is constitutionally palatable.” Under Article IV, Section 6, the legislature has until July 1 of the year following the census to adopt new legislative district maps. If the legislature fails to do so, the secretary of state has until Aug. 15 to adopt a legislative district plan. The plaintiffs asked the court to extend these deadlines to three months following the release of census data (expected by Sept. 30).
On March 19, the Oregon Supreme Court proposed the following timeline:
Drafting and responses:
- Oct. 15, 2021: Deadline for state legislature to adopt its own plan.
- Oct. 22, 2021: Deadline for the secretary of state to adopt a plan if the legislature fails to do so.
- Nov. 19, 2021: Deadline for electors to object to new district plan.
- Dec. 3, 2021: Deadline for the legislature, secretary of state, and others to respond.
- Dec. 10, 2021: Deadline for the submission of reply briefs.
Judicial review and enactment:
- Dec. 17, 2021: Deadline for the state supreme court to file its opinion approving of the redistricting plan.
- Dec. 31, 2021: Deadline for the state supreme court to file opinion rejecting the redistricting plan.
- Dec. 28, 2022: Deadline for the secretary of state to submit a revised plan.
- Feb. 11, 2022: Deadline for the state supreme court to make final revisions to the redistricting plan.
Attorneys for state lawmakers said they support the court’s proposal: “Implementing this Court’s tentative amended deadlines is the least disruptive option, given the extraordinary Census data delay caused by the COVID-19 pandemic and is the only option that ensures that all of the parties responsible for reapportionment—including the Legislative Assembly—are able to exercise their constitutional role in the reapportionment process.” Fagan’s office opposed the proposal: “The Secretary supports initially using non-census data to draw maps that can subsequently be evaluated—and revised if necessary—in light of the census. The Secretary continues to believe that this approach will achieve the most timely and accurate solution to this difficult problem, without requiring this court to significantly rewrite the Oregon Constitution.”
- Case name and number: Oregon ex rel. Kotek v. Fagan (S068364).
Federal courts in Georgia, Michigan strike down ballot access requirements for select candidates
On March 29, federal courts in Georgia and Michigan struck down ballot access requirements for select candidates.
On March 29, Judge Leigh Martin May, of the U.S. District Court for the Northern District of Georgia, struck down a Georgia law requiring minor-party and unaffiliated candidates for the U.S. House of Representatives to submit petitions signed by at least 5 percent of the district’s registered voters. May, a Barack Obama (D) appointee, ruled that this requirement “overburdens [voters’ and candidates’] rights to vote and to associate with their preferred political party, and so it violates the First and Fourteenth Amendments.”
In her order, May contrasted the 5% signature requirement for U.S. House candidates with the 1% requirement for statewide candidates, “The [Georgia] General Assembly has deemed a 1% petition signature requirement adequate to guard against ballot crowding and frivolous candidacies on a statewide basis. It is not immediately clear why candidates for non-statewide office must clear a proportionally higher hurdle, the 5% petition signature requirement. [The state] has not offered any explanation for this disparity.”
May directed the plaintiffs (the Libertarian Party of Georgia) to submit a brief within three weeks on proposed remedies. The state will then have an opportunity to respond before May issues further guidance.
Under the 5% signature requirement, originally enacted in 1943, no minor-party candidate for the U.S. House has qualified for the general election ballot. In 2020, minor-party or unaffiliated candidates would have needed between 19,777 and 26,539 signatures in order to qualify for the ballot (the number varied by congressional district).
It is not clear whether the state will appeal the decision.
- Case name and number: Cowen v. Kemp (1:17-cv-04660).
On March 29, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit affirmed a lower court decision striking down Michigan’s petition requirement for unaffiliated candidates for statewide office. Writing for the court, Karen Moore (a Bill Clinton (D) appointee) said, “[It] is our responsibility to ensure that Michigan’s provisions for qualifying independent candidates for statewide office fall within the bounds of what the First and Fourteenth Amendments require. Our careful review of the facts and circumstances leads us to conclude that the 30,000-signature requirement, geographic-distribution requirement, and filing deadline, when viewed in combination, unconstitutionally burden Plaintiffs’ First Amendment rights.” Judge Ronald Lee Gilman (also a Clinton appointee) joined Moore’s opinion. Judge Richard Griffin (a George W. Bush (R) appointee) dissented.
The district court had earlier reduced the petition signature requirement for unaffiliated statewide candidates to 12,000, an order the state appealed. The appellate court upheld the district court’s remedy, calling it a “workable interim provision.”
It is not clear whether the state intends to appeal the appellate panel’s decision.
- Case name and number: Graveline v. Johnson (U:S District Court: 2:18-cv-12354; U.S. Court of Appeals: 0:20-cv-01337).
Legislation update: Redistricting, electoral systems, and primary systems bills
Redistricting legislation: So far this year, we’ve tracked at least 120 redistricting-related bills up for consideration in state legislatures.
Redistricting legislation in the United States, 2021
Current as of April 7, 2021
Electoral systems legislation: So far this year, we’ve tracked at least 131 bills dealing with electoral systems that are up for consideration in state legislatures.
Electoral systems legislation in the United States, 2021
Current as of April 7, 2021
Primary systems legislation: So far this year, we’ve tracked at least 16 bills dealing with primary systems that are up for consideration in state legislatures.
Primary systems legislation in the United States, 2021
Current as of April 7, 2021