U.S. Census Bureau releases congressional apportionment counts

Ballot Bulletin

Redistricting round-up: U.S. Census Bureau releases congressional apportionment counts, kicking off redistricting cycle

On April 26, the U.S. Census Bureau released congressional apportionment counts. Six states — Texas (two seats), Colorado, Florida, Montana, North Carolina, and Oregon — gained seats. Seven states — California, Illinois, Michigan, New York, Ohio, Pennsylvania, and West Virginia— each lost a seat.

Of the six states that gained congressional seats, three are Republican trifectas (Texas, Florida, and Montana), meaning Republicans control the governorship and majorities in both state legislative chambers in each. Two (Colorado and Oregon) are Democratic trifectas, and one (North Carolina) has a divided government.

Of the seven states that lost congressional seats, three (California, Illinois, and New York) are Democratic trifectas, two (Ohio and West Virginia) are Republican trifectas, and two (Michigan and Pennsylvania) have divided governments.

The release of apportionment counts marks the unofficial start of the 2021-2022 redistricting cycle. Throughout this year and next, policymakers (including state legislators, governors, and special redistricting commissions) will draft and implement new state legislative and congressional district maps, which will remain in force for the next 10 years.

Earlier: The Census Bureau was originally set to deliver apportionment counts by Dec. 31, 2020. However, on Nov. 19, 2020, Census Bureau Director Steve Dillingham announced that, “during post-collection processing, certain processing anomalies [had] been discovered.” Dillingham said that he had directed the bureau “to utilize all resources available to resolve this as expeditiously as possible,” suggesting a delay in delivering the apportionment counts.  On Jan. 27, 2021, Kathleen Styles, a Census Bureau official, announced that the final apportionment counts would be delivered by April 30.

The census and reapportionment: Every ten years, the nation conducts the census, a complete count of the U.S. population. The data gleaned from the census determines congressional apportionment. Apportionment is the process by which the 435 seats in the U.S. House of Representatives are allotted to the states on the basis of population, as required under Article I, Section 2, of the U.S. Constitution. A state can gain seats in the House if its population grows – or lose seats if its population decreases – relative to populations in other states.

The census and redistricting: 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. The Census Bureau was originally set to deliver redistricting data to the states by April 30. However, in light of the aforementioned processing issues and delays, the Census Bureau shifted the timeline. Upon announcing the 2020 apportionment counts, Acting Census Bureau Director Ron Jarmin said, “Our work doesn’t stop here. Now that the apportionment counts are delivered, we will begin the additional activities needed to create and deliver the redistricting data that were previously delayed due to COVID-19.” The Census Bureau expects to deliver the raw data to the states by Aug. 16. The “full redistricting data with toolkits for ease of us” will be delivered by Sept. 30.

Release of apportionment counts triggers lawsuits in Louisiana, Minnesota, and Pennsylvania 

On April 26, Democracy Docket filed three separate lawsuits on behalf of registered voters in three states, asking courts in Louisiana, Minnesota, and Pennsylvania to intervene and set up timelines for enacting court-drawn maps for the 2022 election cycle “in the near-certain event” that governors and legislatures in each state fail to do so. The substantive language used in the three suits is similar. All three allege that “there is no reasonable prospect that … political branches will reach consensus to enact” lawful district maps in a timely manner because the three states operate under divided governments (i.e., both the Democratic and Republican parties control at least one of the following: the governorship, the upper chamber of the state legislature, and the lower chamber). In the 2010-2011 redistricting cycle, Ballotpedia tracked redistricting lawsuits in 37 states. 

  • Case names and numbers

Oklahoma lawmakers unveil draft maps for state legislature 

On April 21, Oklahoma lawmakers released their proposed district maps for the state Senate and House of Representatives, making Oklahoma the first state in the 2021-2022 cycle to produce draft maps. In lieu of final 2020 census data, which has not yet been made available to the states, lawmakers used the U.S. Census Bureau’s American Community Survey data for 2015 through 2019 to draft their proposals. Click here to view an interactive presentation of the proposed maps.

New York Gov. Cuomo mulls legal challenge over loss of congressional seat 

On April 27, Gov. Andrew Cuomo (D) told reporters that he was considering the state’s “legal options” with respect to New York’s loss of one congressional seat to reapportionment. According to estimates by the U.S. Census Bureau, New York could have kept this seat if 89 additional residents had been counted in New York. Cuomo said, “Do I think it was accurate within 89? No. And we’re looking at legal options. Because when you’re talking about 89, that could be a minor mistake in counting.” According to Janna Johnson, an assistant professor at the University of Minnesota Humphrey School of Public Affairs, no state has ever succeeded in challenging apportionment counts in court.

Pennsylvania Supreme Court appoints chair of state legislative redistricting commission 

On May 3, the Pennsylvania Supreme Court announced the appointment of Mark Nordenberg as chair of the Pennsylvania Legislative Reapportionment Commission. Nordenberg, Chair of the University of Pittsburgh’s Institute of Politics, joins Sen. Majority Leader Kim Ward (R), Sen. Minority Leader Jay Costa (D), House Majority Leader Kerry Benninghoff (R), and House Minority Leader Joanna McClinton (D). The state supreme court appointed Nordenberg as chair after the four other members of the commission failed to agree on an appointment. The commission has the sole authority to draft and implement new state legislative district maps. 

Austin, Texas, voters approve ballot measure for municipal ranked-choice voting, if state allows

On May 1, voters in Austin, Texas, voted 57.95%-42.05% in favor of Proposition E, amending the city’s charter “to provide for the use of ranked choice voting in city elections, if such voting is permitted by state law.” 

What does “if such voting is permitted by state law” mean? According to the Austin Law Department, ranked-choice voting is not currently permitted under Texas state law. A spokesperson for the department said, “Ranked-choice voting would not be implemented in Austin until or unless the Texas Constitution was amended and/or until the state Legislature amended the Texas Election Code to allow it.”

State law currently makes no mention of ranked-choice voting. Prior to 1985, the Texas Election Code did allow for “preferential voting” (i.e., ranked-choice voting) as an alternative electoral system. This provision was eliminated in 1985 during a major recodification of the state’s election laws.  

In a 2001 letter to Austin City Attorney John Steiner, then-Secretary of State Henry Cuellar said:

It is [this office’s] opinion that the meaning of the word “majority,” as the Texas Legislature has used it in the [Election] Code and as it has been interpreted by the courts, is majority in the “classic” or “traditional” sense, i.e., a majority vote consists of more than half of the original votes, as cast and not re-assigned by the voter’s secondary or tertiary intent, and if no candidate receives more than half the votes, a runoff election is required. Barring a conflict with the Texas Constitution, the Texas Legislature would need to amend state law, or to repeal the statutory conflict, in order to restore the city’s discretion to adopt preferential voting. 

What happens next? It remains to be seen whether Texas lawmakers will adopt a law permitting cities and counties to use ranked-choice voting. There is no legislation to that effect currently before the Texas Legislature. 

About ranked-choice voting: In a ranked-choice voting system (RCV), voters rank candidates by preference on their ballots. If a candidate wins a majority of first-preference votes, he or she is declared the winner. If no candidate wins a majority of first-preference votes, the candidate with the fewest first-preference votes is eliminated. First-preference votes cast for the failed candidate are eliminated, lifting the second-preference choices indicated on those ballots. A new tally is conducted to determine whether any candidate has won a majority of the adjusted votes. The process is repeated until a candidate wins an outright majority.

Ranked-choice voting is currently used, largely at the municipal level, in the following states: California, Colorado, Delaware, Massachusetts, Maine, Maryland, Michigan, Minnesota, New Mexico, New York, Oregon, and Utah. Maine is the only state that has thus far implemented ranked-choice voting at the statewide level. Alaska will begin using ranked-choice voting for federal and state general elections starting in the 2022 election cycle. 

Legislation update: Redistricting, electoral systems, and primary systems bills 

Redistricting legislation: So far this year, we’ve tracked at least 144 redistricting-related bills up for consideration in state legislatures. 

Redistricting legislation in the United States, 2021 
Current as of May 5, 2021

Electoral systems legislation: So far this year, we’ve tracked at least 143 bills dealing with electoral systems that are up for consideration in state legislatures. 

Electoral systems legislation in the United States, 2021 
Current as of May 5, 2021

Primary systems legislation: So far this year, we’ve tracked at least 19 bills dealing with primary systems that are up for consideration in state legislatures. 

Primary systems legislation in the United States, 2021 
Current as of May 5, 2021