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May 8, 2021

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Census delay spells election chaos for states

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The monthslong delay in tallying last year’s census is wreaking havoc on the states with elections this year and next.

The stakes are high in states with fast-changing populations: In states that are becoming more diverse, Democrats are eager to wield increased statehouse clout and advance agendas such as expanding voting rights and moving away from mass incarceration. Republicans hanging on to control in swing states want to draw new legislative and congressional district lines to retain endangered suburban districts by extending them into rural areas where conservative sentiment is still strong.

States and cities depend on detailed population totals to draw the new districts that determine representation in Congress, statehouses and local offices.

Normally, those numbers from the 2020 census would have come out in March, but now they’re delayed until August or September because of pandemic setbacks.

Two states, New Jersey and Virginia, already have decided to hold elections using the old districts drawn after 2010, a move that deprives growing and changing areas of the representation they deserve. Twenty-five states have laws, some enshrined in their constitutions, requiring new districts this year – a difficult feat if tallies don’t come out until the fall or winter.

Some states have turned to courts – Alabama and Ohio tried to stop census delays, and Oregon is asking courts to allow a delay in redrawing districts despite state law. Idaho and Oklahoma are among those turning to alternative data to get the job done on time, a move Colorado, Illinois, Massachusetts and Washington also are weighing.

Alabama is considering a law delaying 2022 primaries because of the late data and a Texas bill would give the governor the power to postpone next year’s primaries if time runs short. And in North Carolina, some cities are waiting for state permission to either delay elections or use old districts for city council elections this year.

Many states have primaries next spring for November 2022 elections. With timetables cut short by months, there’s little time for legislature or commission debates and public input even as candidates look for support in yet-unspecified districts.

“It’s just going to be a mess,” said Cal Jillson, a political science professor at Southern Methodist University in Dallas.

When states carry out elections using outdated districts, fast-growing areas that may be becoming more racially and ethnically diverse can be politically underrepresented.

In New Jersey, progressive groups clashed with the Democratic Party’s decision to use a constitutional amendment approved by voters in November to delay redistricting until after this year’s state elections. The state’s largest growth in the past decade, about 38,000 people, has been in Hudson County, where Hispanic and other immigrants predominate.

“New Jersey is much more diverse than it was 10 years ago, so this is delaying representation for communities of color,” said Henal Patel, a director of the progressive New Jersey Institute for Social Justice, adding that it deprives her organization of support for programs it advocates, such as voting and housing rights.

“We advocate for racial justice, so this will delay our agenda. It’s about power,” Patel added.

Red states also may be disadvantaged in elections with old districts, Jillson said. That’s because districts that seemed safely Republican when drawn in 2011 may have slipped away as the state’s population diversified over the decade.

“Republicans want to redistrict as soon as they can in swing states like Arizona and Florida as well as Texas, to buttress their majorities in places where it has deteriorated, by adding in some more rural areas,” Jillson said.

A clear example, he said, are suburban areas such as the 24th Congressional District between Dallas and Fort Worth, where Republican Rep. Beth Van Duyne won by just over 1 percentage point last year.

Virginia also has opted to run state elections this year without new lines. New districts may be available before November, but not in time to prepare for elections.

The idea of using alternative data, such as Census Bureau estimates of population and race, is inherently flawed because such proxies are not based on actual counts like the delayed data, and they don’t go into the fine-grained detail usually required by redistricting. The delayed data, called P.L. 94-171 after the 1975 law that created it, includes population down to the level of city blocks, allowing almost infinite variations on district lines.

“I don’t think anybody in these states would call these good alternatives, but they’re trying to do the best they can, given the pickle the Census Bureau has put them in with late data,” said Benjamin Williams, an elections and redistricting policy specialist at the National Conference of State Legislatures.

Three states considering alternative data, Idaho, Oklahoma and Oregon, all have backup plans if the legislature can’t finish the districts on time. Oregon’s secretary of state would draw the lines, and commissions would do so in Idaho and Oklahoma, Williams said.

In Idaho’s case, it was relatively easy to use estimates because state law requires that districts respect county lines, so most of the job can be done with county population estimates made before the 2020 census, Williams said.

Oregon’s legislature and secretary of state are in a legal battle even though all involved are Democrats. The legislature is asking the state Supreme Court to delay redistricting until the census data comes out, cutting out the secretary of state, who, under state law, gets to make the districts if the legislature can’t do it in time. Secretary of State Shemia Fagan says she could get the job done by July 1 using estimates, a plan lawmakers called “replete with uncertainties” in court papers.

Fagan said in a statement that her plan is “an opportunity to get the work underway much sooner and avoid challenges,” and that it leaves as much time for public input as possible and allows later corrections when better data arrives.

The alternative data Fagan wants to use is being built by a team at Portland State University and will use a combination of 2010 census data and estimates based on state information such as births and residential construction to estimate population down to the block level. The state also will use it to flag possible errors after the census releases the data, said Ethan Sharygin, director of the university’s Population Research Center.

Other states with similar projects include Colorado, Massachusetts and Washington, Sharygin said.

Oklahoma is taking a different route, using survey estimates for smaller areas than counties to handle line-drawing without the new numbers, Williams said.

On April 5, a coalition of voting rights groups urged Ohio to postpone next year’s May primaries, to give candidates more time to prepare to run in new districts. Illinois Democrats have said they’ll use alternative data estimates to avoid losing control to a commission because of the delay.

Kimball Brace, a Virginia-based redistricting consultant who works for the Illinois legislature, said the alternative data can speed up the process and avoid some of the risk that courts will overturn elections based on old districts.

“We could end up having these elections in 2021 done over again in 2022 and then again in 2023,” Brace said. “Nobody wants to face that, and nobody wants to go through more court challenges.”

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