TagRedistricting

Redistricting review: Ohio, Census Bureau reach settlement in lawsuit over release of redistricting data

Ohio: On May 25, Ohio Attorney General Dave Yost (R) announced that the state had reached a settlement agreement with the Census Bureau in its lawsuit over the Census Bureau’s plan to deliver redistricting data to the states by September 30, 2021, instead of April 1, 2021, the deadline set forth in federal law. Under the terms of the settlement, the Census Bureau agreed to deliver redistricting data, in a legacy format, by August 16, 2021. The legacy format would present the data in raw form, without the data tables and other access tools the Census Bureau will ultimately prepare for the states. The Census Bureau also agreed to deliver biweekly updates (and, in August, weekly updates) on its progress. Yost said, “This administration tried to drag its feet and bog this down in court, but Ohio always had the law on its side and now the federal government has finally agreed. It’s time to cough up the data.” As of May 26, the Census Bureau had not commented publicly on the settlement.

The Census Bureau had previously indicated that redistricting data would be made available to states in a legacy format in mid-to-late August 2021, saying the following in a statement released on March 15, 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.”

Illinois: State lawmakers in Illinois released their proposed maps on May 21 for the Illinois State Senate and the Illinois House of Representatives, becoming the second state (after Oklahoma) in the 2020 redistricting cycle to produce draft maps.

Upon announcing the release of the proposed maps, Sen. Omar Aquino (D) said, “Redistricting is about making sure all voices are heard, and that’s exactly what this map accomplishes. This is a fair map that reflects the great diversity of our state and ensures every person receives equal representation in the General Assembly.”

Rep. Tim Butler (R) criticized the proposed maps: “Tonight’s drop of partisan maps is yet another attempt to mislead voters in an effort to block fair elections. We continue our call upon Governor Pritzker to live up to his pledge to the people of Illinois and veto a map that was drawn by politicians like what we see here today.”

In Illinois, the General Assembly is responsible for both congressional and state legislative redistricting. Redistricting plans are subject to gubernatorial veto. Illinois is a Democratic trifecta, meaning that Democrats control the governorship and majorities in both chambers of the General Assembly.

Wisconsin: On May 14, the Supreme Court of Wisconsin denied a petition for a proposed rule by which the state supreme court would have assumed original jurisdiction over redistricting lawsuits. When a court assumes original jurisdiction, it has the “power to hear and decide a matter before any other court can review the manner.”

On June 3, 2020, Attorney Richard M. Esenberg, Brian McGrath, and Anthony F. LoCoco, on behalf of Scott Jensen and the Wisconsin Institute for Law and Liberty, filed the petition for the proposed rule, saying that the state supreme court had, in Jensen v. Wisconsin Elections Board (2002), “noted that redistricting was primarily a state and not a federal responsibility … but nevertheless deferred to the federal courts because of the perceived procedural problem of a lack of rules for such a case in [the state supreme court.” The petitioners asked the court to adopt the proposed rule “to cure the perceived procedural problems it noted in Jensen.”

In an unsigned order denying the petition, the court said, “The court determined that, as drafted, the procedures proposed in this administrative rule petition are unlikely to materially aid this court’s consideration of an as yet undefined future redistricting challenge, and voted to deny the petition.” The court added, “Our decision in this rule matter should not be deemed predictive of this court’s response to a petition for review asking this court to review a lower court’s ruling on a redistricting challenge or a request that we assume original jurisdiction over a future redistricting case or controversy.”

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Redistricting review: Sixth Circuit rules Ohio has standing to sue Census Bureau over delayed data

On May 18, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit ruled that Ohio has standing to sue Secretary of Commerce Gina Raimondo over the U.S. Census Bureau’s plan to release redistricting data to the states by September 30 instead of the April 1 deadline set forth in federal statutes.

The Sixth Circuit found that Ohio meets all three requirements for standing to bring a lawsuit: “First, Ohio suffered (and continues to suffer) an informational injury because the Secretary failed to deliver Ohio’s data as the Census Act requires. Second, the injury is traceable to the Secretary because Ohio’s informational injury is the direct result of the Secretary’s failure to produce the required data. And third, Ohio’s injury is redressable.” 

The panel unanimously sent the case back to the district court for further consideration. The three judges on the panel were Martha Daughtrey (a Bill Clinton (D) appointee), David McKeague (a George W. Bush (R) appointee), and Amul Thapar (a Donald Trump (R) appointee). 

The state filed its lawsuit (Ohio v. Coggins) against the Census Bureau in the U.S. District Court for the Southern District of Ohio on Feb. 25. 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.” 

The state asked that the court “issue an injunction either prohibiting the defendants from delaying the release of Ohio’s redistricting data beyond March 31, or else requiring the defendants to provide the State with Ohio’s population data at the earliest date this Court deems equitable.”

Judge Thomas Rose, a George W. Bush (R) appointee, dismissed the lawsuit on March 24, 2021, 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. The Court cannot ‘order a party to jump higher, run faster, or lift more than she is physically capable.'” The next day, the state appealed Rose’s decision to the Sixth Circuit, which heard oral argument on May 12. 

A similar lawsuit is pending in Alabama.

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Redistricting review – a summary of this week’s map-making news

During this year and next, state legislators, governors, and special redistricting commissions will draft and implement new congressional and state legislative district maps that will be used for the next 10 years. We’ll bring you regular updates here in the Brew about all of the many redistricting goings-on. The pace is expected to be fast-and-furious in the coming months.

Ohio: On May 12, 2021, the U.S. Court of Appeals for the Sixth Circuit was scheduled to hear oral argument in Ohio v. Coggins, in which Ohio officials are seeking to force the U.S. Census Bureau to release redistricting data to the states ahead of its September 30 target date.

On Feb. 25, 2021, the state filed its lawsuit against the Census Bureau in the U.S. District Court for the Southern District of Ohio. 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.” The state asked that the court “issue 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.”

Judge Thomas Rose, a George W. Bush (R) appointee, dismissed the lawsuit on March 24, 2021, 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 next day, the state appealed Rose’s decision to the Sixth Circuit.

A similar lawsuit is pending in Alabama.

Virginia: On April 26, 2021, state Delegate Lee Carter (D) sent a letter to Attorney General Mark Herring (D) and asked for a formal opinion as to the “constitutionality of the 2021 elections for the House of Delegates being conducted under electoral districts established in 2011.” Carter asked Herring to address the following issues:

1. “The Constitutional authority, if any such authority exists, under which the Virginia Department of Elections is currently conducting the 2021 House of Delegates elections for the electoral districts established in 2011.”

2. “Whether, in the absence of timely data from the United States Census Bureau, the Virginia Redistricting Commission is Constitutionally bound to establish new electoral districts with the best available population data for the House of Delegates elections in the year 2021 and in each tenth subsequent year thereafter.”

As of May 6, 2021, Herring had not responded to Carter’s request for an opinion.

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Here’s a round-up of this week’s redistricting news: May 5, 2021

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.

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New apportionment data released – six states gain congressional seats, seven states lose seats

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.

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New apportionment data released – six states gain congressional seats, seven states lose seats

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.



State redistricting deadlines in 2021, 2022, and 2023

The U.S. Census Bureau announced in February that it would deliver the detailed datasets needed for redistricting to the states by Sep. 30, 2021, after the original April 1, 2021, deadline. Some states’ own redistricting deadlines predate the Census Bureau’s projected data delivery date, prompting states to consider postponements or alternative data sources.

State redistricting deadlines generally take one of three forms:

Constitutional deadlines are set out explicitly in state constitutions. Altering these deadlines typically requires either a constitutional amendment or a court order.

Statutory deadlines are set by state legislatures. They are subject to change at the legislature’s discretion.

• Redistricting deadlines can also be inferred from candidate filing deadlines. For example, if a state sets its filing deadline for congressional candidates for Feb. 1, 2022, it can be inferred that the congressional maps must be fixed by that point.

Congressional redistricting deadlines

Maine’s constitutional June 1, 2021, deadline for congressional redistricting is the earliest such deadline of any state. Five states – Colorado, Connecticut, Hawaii, Illinois, and Ohio – have congressional redistricting deadlines in the third quarter of 2021. Another six states – Michigan, North Carolina, Texas, Utah, Virginia, and Washington – have deadlines in the final quarter of 2021. The remaining states have deadlines in 2022.

State legislative redistricting deadlines

Indiana’s deadline for state legislative redistricting, which is set by statute, is April 29, 2021, earlier than that of any other state. Five other states – Delaware, Illinois, Maine, Nevada, and Oklahoma – have state legislative redistricting deadlines in the second quarter of 2021. Another eight states – Colorado, Connecticut, Hawaii, Iowa, New Hampshire, Ohio, Oregon, and Vermont – have deadlines in the third quarter of 2021. Nine states – Alaska, Massachusetts, Michigan, North Carolina, South Dakota, Texas, Utah, Virginia, and Washington – have deadlines in the final quarter of the year. The remaining states have deadlines in either 2022 or, in the case of Montana, 2023.

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U.S. Census Bureau says it will deliver apportionment data by April 30, redistricting data after July 31

On January 27, 2021, Kathleen Styles, an official at the U.S. Census Bureau, announced at a National Conference of State Legislatures event that the bureau would release its final apportionment report by April 30, 2021. Styles also said the bureau hoped to release detailed redistricting data after July 31, 2021.

Census results are used to determine congressional apportionment (i.e., how many seats in the U.S. House of Representatives a state has). Article I, Section 2, of the U.S. Constitution requires that congressional representatives be apportioned to the states on the basis of population. Consequently, a state may gain seats in the U.S. House if its population grows or lose seats if its population decreases, relative to populations in other states. Census data also informs redistricting efforts at both the congressional and state legislative levels.

The bureau originally planned to deliver its final apportionment report by December 31, 2020, and redistricting data by March 31, 2020. The coronavirus pandemic complicated counting efforts, thereby delaying the delivery of this data. It is not yet clear precisely how these delays will affect state-specific redistricting procedures and deadlines.

In other redistricting and reapportionment news, on January 20, 2021, President Joe Biden (D) issued an executive order directing the Secretary of Commerce to include in the final apportionment report the “tabulation of total population by State that reflects the whole number of persons whose usual residence was in each State as of the designated census date in section 141(a) of title 13, United States Code, without regard to immigration status.” This effectively overturned former President Donald Trump’s (R) earlier directive to the contrary.

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Ballotpedia’s Daily Brew: 30 state legislative races decided by < 100 votes in 2020

30 state legislative races were decided by fewer than 100 votes in 2020

The saying goes, “every vote counts.” For these races, fewer than 100 votes decided the winner. 

Out of the 5,875 total state legislative elections in 2020, 30 (0.5%) races were decided by fewer than 100 votes. Twenty-nine of the races were for a state House, and one was for a state Senate.

Here are some more highlights for you:

  • Partisan control changed in 15 (50%) of the 30 races. Thirteen of the partisan changes (43.3%) were Republican pickups, and two (6.67%) were Democratic pickups. Fifteen seats did not change partisan control.
  • Of the 30 seats, 15 were won by Democratic candidates and 15 by Republicans.
  • Of the 86 state legislative chambers that held elections in 2020, 14 (16.3%) had at least one race that was decided by fewer than 100 votes.
  • The narrowest margin in any state legislative election last November was for a seat in the New Hampshire House of Representatives. Incumbent Timothy Fontneau (D) defeated Harrison deBree (R) by four votes.
  • The New Hampshire House of Representatives had 11 races decided by fewer than 100 votes—more than any other chamber. As of 2010, there were, on average, 3,291 people in each New Hampshire House district, making them the smallest state legislative districts in the country. 
    • The Vermont House of Representatives had five races decided by fewer than 100 votes—the second-highest number after the New Hampshire House.
  • Most of the races took place in districts with small population sizes compared to the rest of the country. Twenty-four races (80%) were in districts with a population of less than 25,000. Districts that size made up 26.3% of all state legislative districts as of 2010.

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New York voters to decide redistricting-related constitutional amendment at the 2021 general election

The first year of a decade means redistricting, and in New York voters will have an opportunity to weigh-in on a ballot measure that could impact how the state draws districts for the next decade.

On Jan. 20, the New York State Assembly approved an amendment that would make changes to the redistricting process in the state, including the redistricting cycle to be based on the 2020 U.S. Census. The amendment will appear on the Nov. 2, 2021 ballot.

The measure would change vote thresholds for adopting a redistricting plan when one political party controls both legislative chambers. It would also add requirements for counting certain persons for redistricting purposes. 

Proponents of the measure argue that the current system will give Republicans an undue advantage in the redistricting process. Opponents argue that the amendment reduces, or eliminates, a minority power’s ability to have any input and thus makes redistricting more partisan.

The state Senate approved the amendment on Jan. 12. Since the state constitution requires that constitutional amendments be approved during two successive legislative sessions before going to voters, both legislative chambers approved the amendment in 2020 as well. 

The state Senate vote was 42- 20, along party lines. The state Assembly vote was 100-50. Most Assembly Democrats (99 of 106) voted ‘yes’ on the amendment, and seven Democrats and all 43 Republicans voted ‘no’ on the amendment.

The New York State Legislature could place several other constitutional amendments on the ballot in 2021, including several related to electoral policy and an environmental rights amendment.

Keep reading at the link below to learn more about the amendment.

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Looking at 2021 state supreme court vacancies

Another 2021 landscape we’re looking at is upcoming state supreme court vacancies. So far this year, there have been two new state supreme court vacancies in two of the 29 states where replacement justices are appointed instead of elected. The vacancies have both been caused by retirements. Those two vacancies bring the total number of 2021 state supreme court vacancies to five.

  • In Colorado, Chief Justice Nathan Coats retired on Jan. 1, when he reached the mandatory retirement age of 72. Gov. Jared Polis (D) appointed Maria Berkenkotter to the state Supreme Court on Nov. 20, 2020. Berkenkotter is Polis’ first nominee to the seven-member supreme court. 
  • In South Dakota, Chief Justice David Gilbertson retired in early January, when he reached the mandatory retirement age of 70. Gov. Kristi Noem (R) appointed Scott P. Myren to the state Supreme Court on October 28, 2020.

Currently, Maine is the only appointment state which had a vacancy in 2020 which has yet to be filled.

Three more states will see vacancies from retirement on their state supreme courts in 2021:

  • Leslie Stein, June 4, New York
  • Joel Bolger, June 30, Alaska
  • Eugene Fahey, Dec. 31, New York

In Alaska, Gov. Mike Dunleavy (R) will fill the vacancy. Gov. Andrew Cuomo (D) will fill both of the vacancies on the New York Supreme Court.

In 2020, there were 23 supreme court vacancies in 16 of the 29 states where replacement justices are appointed instead of elected.
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Expected census delays may postpone state redistricting efforts in 2021

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, [2021], 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.

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