The U.S. Census Bureau released data from the 2020 census in an easier-to-use format to both the states and the public at data.census.gov on Sept. 16. The Census Bureau also delivered DVDs and flash drives of the data to state legislatures and redistricting authorities. It had previously announced that it would release this summary data by Sept. 30.
The data itself had already been released in a legacy format on Aug. 12, including demographic information for states, counties, and individual census tracts and blocks.
States have used the data to start redrawing congressional and state legislative district boundaries to reflect the results of the 2020 census.
The Census Bureau was originally scheduled to deliver redistricting data to the states by March 30, but the process was delayed due to the coronavirus pandemic. Sixteen states have constitutional deadlines requiring that they complete their legislative redistricting this year, and eight have such deadlines to complete their congressional redistricting.
In this week’s Redistricting Review, we cover news out of Alabama and Colorado.
Alabama: On June 29, a three-judge panel of the U.S. District Court for the Middle District of Alabama rejected an attempt by Alabama state officials to force the U.S. Census Bureau to release redistricting data in advance of August 16, the date by which the Bureau has said it will release the data to the states.
Federal law requires that the Bureau deliver redistricting data to the states by April 1 of the year following a census. However, due to delays in conducting the 2020 census and processing the data, the Bureau announced in early 2021 that it would miss this deadline. The state of Alabama sued the Census Bureau on March 11. In his complaint, Alabama Solicitor General Edmund G. LaCour, Jr., said, “The Bureau has no authority to grant itself this extension and deprive Alabama of information to which it is entitled.” LaCour also alleged that 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,” thereby “denying Alabama accurate information about where Alabamians actually live.”
LaCour asked the court to issue an order barring application of the differential privacy method and directing the U.S. Census Bureau to deliver data to the states by March 31. A three-judge panel of Judges Kevin Newsom, Emily Marks, and R. Austin Huffaker (all Donald Trump (R) appointees) heard the case.
The court unanimously rejected Alabama’s request: “The court cannot force the Bureau to do the impossible – that is, comply with an already-lapsed deadline. … Furthermore, the Bureau has made quite clear that it will be able to deliver the redistricting data to the State by August 16, 2021. Again, Plaintiffs have acknowledged that date suffices for them to be able to complete redistricting without injury. We see no prejudice to Plaintiffs in denying a writ of mandamus requiring the Bureau to issue the data any earlier.”
Colorado: On June 29, staff of the Colorado Independent Legislative Redistricting Commission released preliminary district maps for the Colorado House of Representatives and the Colorado State Senate. The commission will now conduct at least three public hearings on the proposed maps in each of the state’s current congressional districts. This makes for a total of at least 21 public hearings, all of which must also be broadcast online.
After public hearings are concluded, the commission can take a vote on the preliminary map or ask commission staff to make revisions. In order to enact a map, eight of the commission’s 12 members (including at least two unaffiliated members) must approve of it. The Colorado Supreme Court must also sign off on the map.
The staff of the Colorado Independent Congressional Redistricting Commission released preliminary congressional district maps on June 23.
Last week, the U.S. Census Bureau released apportionment counts for the U.S. House of Representatives, kicking off 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. Beginning today, we will provide weekly updates on major redistricting events across all 50 states.
• 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.
• 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).
• 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, the state could have kept the seat if 89 additional New York residents had been counted. 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 chairman of state legislative redistricting commission: On May 3, the Pennsylvania Supreme Court announced the appointment of Mark Nordenberg as chairman 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 chairman 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.
On April 26, 2021, the U.S. Census Bureau released it post-2020 census 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) is 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) are divided governments.
What is apportionment, and how does it work? 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.
After the first census (1790), the 105 members of U.S. House represented about 34,000 residents each. Now, the 435 members of the House will represent an average of 761,169 residents each.
The 2020 census: According to the 2020 census, the resident population of the United States, as of April 1, 2020, was 331,449,281, representing a 7.4 percent increase over the 2010 population. California remained the most populous state with 39,538,223 residents. The population of Texas, the only state to gain multiple congressional seats from apportionment, grew by nearly 4 million residents between 2010 and 2020, reaching 29,145,505. Utah was the fastest-growing state: its population increased by 18.4 percent between 2010 and 2020, reaching 3,271,616.
The census is a complex undertaking. First, the Census Bureau collects data. This involves making a list of every residence (including houses, apartments, dorms, etc.) in the 50 states, the District of Columbia, and the five U.S. territories; asking members of each household in the country to complete the census survey; and following up with those households that did not submit surveys. The Census Bureau then must process the data. This involves making a final list of residential addresses, cross-checking for duplicate responses, and processing write-in responses. The Census Bureau also uses imputation, a statistical method applied “in rare instances” that enables the Census Bureau “to fill in missing information using what we already know about an address and its nearest, similar neighbor.” Typically, upon final processing of the data, the Census Bureau delivers state population and apportionment counts by December 31 in the year of the census. Detailed redistricting data follows by April 1 of the next year.
On November 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.” On January 27, 2021, Kathleen Styles, a Census Bureau official, announced that the final apportionment report would be delivered by April 30, 2021.
What comes next: The Census Bureau has not yet delivered redistricting data to the states. 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 August 16. The “full redistricting data with toolkits for ease of us” will be delivered by September 30.
The United States Census Bureau released its post-2020 census apportionment counts on April 26, 2021. Apportionment is the process whereby the 435 districts in the U.S. House of Representatives are allotted to the states on the basis of population.
Six states gained seats. Texas gained two, while Colorado, Florida, Montana, North Carolina, and Oregon gained one each. Seven states—California, Illinois, Michigan, New York, Ohio, Pennsylvania, and West Virginia—each lost a seat.
On Nov. 19, U.S. Census Bureau Director Steve Dillingham announced that, “during post-collection processing, certain processing anomalies have been discovered” in the 2020 United States Census. Dillingham said he had directed the bureau “to utilize all resources available to resolve this as expeditiously as possible.” Also on Nov. 19, The New York Times reported that “a growing number of snags in the massive data-processing operation that generates population totals had delayed the completion of population calculations at least until Jan. 26, , and perhaps to mid-February.”
This expected delay could postpone state redistricting efforts in 2021. At least one state (California) has already extended its redistricting deadlines in light of the uncertainty surrounding the conclusion of the census. On July 17, the California Supreme Court unanimously ordered the California Citizens Redistricting Commission to release draft district plans by Nov. 1, 2021, and final district plans by Dec. 15, 2021. The original deadlines were July 1, 2021, and August 15, 2021, respectively.
The census, apportionment, and redistricting: Every ten years, the United States conducts the census, a complete count of the U.S. population. Census results determine congressional apportionment (i.e., the number of seats each state has in the U.S. House of Representatives). Because the U.S. Constitution requires that seats in the House be apportioned to the states on the basis of population, a state can gain seats if its population grows or lose seats if its population decreases, relative to populations in other states.
Federal law requires congressional and legislative districts to have substantively equal populations. States use census data during their redistricting processes to ensure compliance with this requirement. The standard census timeline calls for the bureau to submit apportionment counts to the President by Dec. 31 and redistricting data to the states by April 1, 2021.
In the 2010 cycle, redistricting authorities enacted 43 new congressional district maps and 50 new state legislative district maps. The majority of these – 63 maps (31 congressional and 32 state legislative), 67.74 percent of the total– were enacted in 2011. In 2012, 28 maps (12 congressional and 16 state legislative) were enacted, 30.11 percent of the total. The remaining maps were enacted in the first six months of 2013.
On October 16, the U.S. Supreme Court accepted Trump v. New York for expedited review and scheduled oral argument for November 30, 2020. The case came on a writ of certiorari to the U.S. District Court for the Southern District of New York. It concerns congressional apportionment following the 2020 U.S. Census. The U.S. government is asking the Supreme Court to consider if the president can order the U.S. secretary of commerce to exclude individuals residing unlawfully in the U.S. from the census’ apportionment base.
On July 21, 2020, President Donald Trump (R) issued a memorandum to U.S. Secretary of Commerce Wilbur Ross. The memorandum said it was the policy of the United States to exclude individuals living unlawfully in the U.S. from the census apportionment base. A coalition of state and local governments sued the government in U.S. district court, arguing the policy violated the U.S. Constitution and laws governing the census and apportionment. The government argued (1) the court did not have jurisdiction to review the claims and (2) the policy was legal. The U.S. District Court for the Southern District of New York ruled in favor of the coalition, holding the president exceeded his authority in issuing the memorandum. The government appealed to the U.S. Supreme Court.
The government presented the following two questions to the court:
Does the coalition of state and local governments have the legal right—or standing—to challenge the memorandum?
Does the president have the authority to exclude individuals unlawfully residing in the U.S. from the apportionment base?
The census aims to provide a complete count of the U.S. population along with demographic data. The 2020 census is being conducted by the U.S. Census Bureau, a division of the U.S. Department of Commerce. Statistical information on the population collected through the census every 10 years is used for congressional apportionment and the distribution of federal funds.
The U.S. Supreme Court issued an order on Oct. 13 which allows the Trump administration to end the 2020 census count. SCOTUS stayed an order from the 9th U.S. Circuit Court of Appeals, which had directed the Trump administration to continue to gather data through the end of October.
The Trump administration had argued that they must be able to conclude the count before the end of October in order to meet a Dec. 31 deadline to report the results to the president. The Justice Department had told the court that “there is virtually no prospect that the [U.S. Census] Bureau will be able to comply with the statutory deadline,” unless they were allowed to end the count.
Justice Sonia Sotomayor dissented, saying: “[T]he harms associated with an inaccurate census are avoidable and intolerable,” and that “meeting the deadline at the expense of the accuracy of the census is not a cost worth paying.”
After the order was issued, the U.S. Census Bureau announced that they would be shutting down on Oct. 15. It has also set that date as the postmark deadline for paper census forms sent by mail, and as the end date for collecting responses through phone calls and door-knocking.
Every ten years, the U.S. Census Bureau conducts a nationwide census in order to provide a comprehensive count of the population with demographic information. This information is used by the government in many ways, including for the apportionment of seats in the U.S. House of Representatives and the allocation of federal funds.