Delayed census data kicks off flood of redistricting lawsuits

States are months away from getting the census data they need to draw new political maps, but courts are already filling up with lawsuits challenging the redistricting process.

One of the Democratic Party’s most prominent lawyers quickly filed three suits in states where neither Republicans nor Democrats have full control over the redistricting process, in preparation for court action to resolve potential impasses over new maps. Ohio and Alabama are suing the Census Bureau over its delayed timeline for giving the states what they need to draw maps. New York is even contemplating legal action after the census count showed it missed out on an extra House seat by just 89 people.

Every redistricting cycle brings a torrent of litigation over the country’s political boundaries, which can play an outsized role in determining which party controls the House of Representatives and statehouses around the country. But this year, a confluence of forces — including the census delays, pending federal legislation about redistricting and major Supreme Court rulings earlier in the decade — could transform that steady stream of lawsuits into a downpour. Combined with the compressed timeline for making new maps, the litigation promises to make redistricting a more chaotic and unpredictable affair in 2021 and 2022.

“We will see a lot of lawsuits,” said Kathay Feng, the national redistricting director at the good government group Common Cause, chuckling at a question about how much litigation there will be this redistricting cycle. Redistricting, she said, “is always a breeding ground for people who are discontent with the results.”

But the litigation is starting well before the results are clear, and what is unusual this year is the focus on exactly what data is used and when it is released. Data from the decennial census has been delayed for months, due in part to the pandemic and the Trump administration’s handling of the count.

Apportionment data — the topline numbers that determine the number of House seats each state gets — was statutorily required to be released by Dec. 31, 2020, but it just arrived on Monday. Redistricting data, the more granular data that includes demographic information over small geographic areas, is not expected until later this summer.

That delay has upended the redistricting process in dozens of states that have deadlines that are incompatible with the new release calendar, which has sent states scrambling to the courts for relief.

The delay could also have a downstream effect on lawsuits that challenge the eventual map lines once they’re drawn.

“There’s a decent chance that a number of them won’t get resolved before the 2022 election,” said Jason Torchinsky, who is general counsel to the National Republican Redistricting Trust. “So the courts are going to either have to basically say ‘you filed late and I can’t issue any orders that affect 2022,’ or a court is going to have to really rush through to change something if it wants to affect 2022.”

So far, California asked for and received a redistricting extension from state courts last year, while Michigan redistricting officials recently asked courts to extend their redistricting window. Other states have sued the Census Bureau to try to force an earlier release of redistricting data.

Ohio was the first state to file a case, which was dismissed by federal district court, a decision the state appealed. Alabama also filed a federal lawsuit challenging both the release schedule and the use of “differential privacy,” a process that will blur demographic data on small geographic levels. The Census Bureau says it is necessary to protect any one individual from being identified, but mapmakers fear it makes the data functionally unusable.

Other states are considering using data other than the decennial count to draw their map lines — including data from the American Community Survey, another Census Bureau product that is independent of the decennial count and is based on a survey instead of a hard count, which would almost assuredly spawn legal challenges.

“It’s not that the ACS data is in itself wrong, but it is like grabbing a pair of sunglasses when you need to read the fine print,” Feng said. “It is not going to give you the sharp focus you need.”

New York Gov. Andrew Cuomo also said he was “looking at legal options” after his state lost out on an additional House seat on Monday by 89 people. But courts have not acted on similar cases in the past, redistricting attorneys say, while noting the pandemic has introduced a new dimension of uncertainty.

“Courts or other processes are set up to treat that data as authoritative,” said Walter Olson, a senior fellow at the conservative Cato Institute who was appointed a co-chair of Maryland Gov. Larry Hogan’s advisory redistricting commission. “If I were a judge, I would be very reluctant to open a door … [that] inevitably is going to invite litigation and disputes, in other states and other census cycles, for a multiplicity of reasons.”

Going forward, major Supreme Court rulings issued over the last decade will shape challenges to the maps themselves: Shelby County v. Holder, which effectively ended the requirement that some states have map lines cleared by the Department of Justice or federal judges to ensure there’s no racial discrimination; and Rucho v. Common Cause, which held that the federal judiciary had no jurisdiction to police partisan gerrymandering, as opposed to racial gerrymandering.

“I think the Shelby County decision is a real impediment,” former Attorney General Eric Holder, who now spearheads the Democratic Party’s redistricting efforts, said in a Tuesday briefing. “It takes away a legal tool that the Biden Justice Department could have to protect voters.”

Plaintiffs can still bring racial gerrymandering cases in federal courts, but the success of state-based challenges to partisan maps over the last decade could point to the future of redistricting cases.

Thirty states have constitutions or laws with clauses protecting “free and equal” elections, which anti-gerrymandering advocates have used to fight partisan maps in several states, said Ben Williams, a redistricting specialist at the nonpartisan National Conference of State Legislatures. “I would imagine that you’ll see more of [those challenges] this decade, and that’ll be the biggest change. And then it just becomes a question of, are courts favorable to these claims?”

Democrats have gotten an early start on filing redistricting lawsuits. Marc Elias, who is the party’s most prominent elections attorney, and the National Redistricting Action Fund, an arm of the Holder-led National Democratic Redistricting Committee, backed three lawsuits in Pennsylvania, Minnesota and Louisiana — states where Republicans control one or both houses of the legislature but Democrats hold the governorship. The suits urged the courts to step in if (or when) there is an impasse in the mapmaking process.

“While these are the first lawsuits of this new election cycle, let me make this point: These are not going to be the last,” Elias said at the Tuesday briefing. “There needs to be a back-stop in place so that there is a court that is ready and prepared to step in and draw the maps to meet the compressed timetable that we are going to see, because of the delay in the release of census data.”

Republicans dismissed the lawsuits as premature, with NRRT executive director Adam Kincaid calling them “nothing more than expensive press releases.”

Congressional Democrats are pushing two pieces of legislation that could significantly remake the mapmaking process, too — as well as the court fights that will follow.

H.R. 1 (117), Democrats’ sweeping elections legislation, includes a ban on partisan gerrymandering. H.R. 4, the John R. Lewis Voting Rights Act, would restore the preclearance requirements that the Supreme Court effectively struck down in the Shelby County decision.

President Joe Biden urged Congress to send both bills to his desk in his speech to Congress earlier in the week, but Sen. Joe Manchin (D-W.Va.) has repeatedly expressed skepticism about H.R. 1, and the filibuster also stands in the way of both given Republican opposition.

But if either piece of legislation defies the odds and actually becomes law, it would upend the already unprecedented redistricting process.

“That’s the wild card in all of this: Congress could yet change the rules of the road in the next few months,” said Michael Li, senior counsel of the democracy program at the Brennan Center, a progressive think tank that supports both bills. “It would be a major ground shift — for the better — but it would be a major ground shift in an otherwise ominous looking cycle.”