September 17, 2021

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Redistricting sprint begins with major census data drop – POLITICO

6 min read

“I know that a lot of folks in the states are looking forward to getting started as well. There’s been a lot of frustration,” said Adam Kincaid, the executive director of the National Republican Redistricting Trust. “They’re staring at primary dates and other things and wondering if they’re going to hit their deadlines, if they’re going to be able to get things done on time.”

Some states with early primaries are even facing the prospect of having to reshuffle their entire election calendar, even pushing back long-standing primary dates, because of the delay.

The topline data that the Census Bureau unveiled in April answered the biggest redistricting question: Which states are gaining and losing congressional seats? This new data trove will help shape the contours of those districts, showing which of the existing seats are currently over- or under-populated and where new districts could be drawn.

The dataset will also give an indication of whether the Census undercounted people of color in certain regions, and it will show whether individual states need to add additional opportunity districts for Blacks and Latinos, as required by the Voting Rights Act. That officially sets the stage for a wave of lawsuits expected from both parties as redistricting moves forward.

The process is also at the center of the battle for control of Congress. Redistricting decisions made in the coming months will be perhaps the largest determining factor in whether Democrats can hang onto to their razor-thin House majority.

Mad dash to redistrict

A handful of states are expected to move quickly in considering new maps, including Colorado, Michigan, Ohio, Kentucky and Iowa. Other states with early deadlines: Oregon, North Carolina, California and Virginia.

When the data drops on Thursday afternoon, it will come in what’s called a “legacy format” — meaning redistricting agencies will have to download large files and convert them so they can be easily read by mapping software. That could take days or weeks.

“It’s like Ikea furniture instead of Pottery Barn,” said Kelly Ward Burton, the president of the National Democratic Redistricting Committee. “When you buy from Pottery Barn, it all comes assembled. It’s like, ‘Here’s your desk.’ But when you get it from Ikea, it’s like, ‘Build it yourself.’”

In Colorado, the state’s independent commission already released a draft map in late June using data that wasn’t from the decennial count. It will now update that map, which created a new district north of Denver, and commissioners will review new plans on Sept. 6.

“We needed data to create preliminary plans so we would have something to talk about when we went out on the road,” Jessika Shipley, the staff director of the state’s independent commission, said of the initial plans. But, with census data in hand, those map lines can — and likely will — shift. The commissioners also still have to answer philosophical questions that will greatly influence what the map ultimately looks like.

“They do have a choice, to say what competitiveness should mean,” Shipley said. “Which communities of interest should be prioritized over others? Those kinds of decisions, essentially, are the ones that they can make value judgments about and should make value judgments about.”

Some states are confined not by early deadlines to submit new maps, but are staring down early primary dates — and subsequently early filing deadlines. Those, too, could be moved as states consider new maps.

Texas, which has a mid-December 2021 deadline for candidates to file for a March 1, 2022, primary, is one of those states. But those dates could soon be on the move: When GOP Gov. Greg Abbott called for a second special state legislative session earlier this month, he instructed lawmakers to consider a bill “modifying the filing periods and related election dates, including any runoffs, for primary elections held in Texas in 2022.”

(That special session is currently at a standstill because Democrats have continued their walkout to protest Republican-led legislation that would add new barriers to voting.)

Illinois, another state that typically has early primaries, has already moved its mid-March primaries to late June because of the redistricting delays.

Who was counted — and how are they represented?

Democrats will pore over the data to examine whether they can successfully push for new majority-minority districts, especially in Southern states. Possible candidates for additional opportunity districts in the South include Louisiana, Alabama and Georgia.

Any additional Voting Rights Act-protected seats in those states would help grow Democrats’ footprint in the South. The first step for Democratic groups is a pressure campaign to urge those state legislatures to voluntarily create new districts. If that fails, the NDRC plans to make the case in court.

And advocates are also looking outside the South as well. Thomas Saenz, the president and general counsel of Mexican American Legal Defense and Educational Fund, ticked off a wide range of states — including Texas, Colorado and California — as potential states where new Latino-dominated districts could be drawn.

The release on Thursday will also allow advocates to see how Americans were counted — and, crucially, if any population was missed, or “undercounted.”

“Where do we know people are, but they just weren’t counted because of unusual circumstances?” said Kathay Feng, the national redistricting director at the good-government group Common Cause. She noted that in addition to the significant problems caused by pandemic, this was the first time the Census Bureau pushed people to respond online, a major shift for the agency.

“It’s sort of like the Hubble telescope. It’s the best that we got, but we know there’s a scratch on it,” she added. “Can we figure out exactly where the distortion is, that’s caused by that scratch on the lens?”

Since the release of apportionment data in April, Latino politicians and advocates have constantly worried that their communities were undercounted, which could diminish political representation for a fast-growing demographic in the U.S. But if their fears are confirmed, activists say that there is little that could be done to fix it, especially for congressional redistricting.

“It really is more about how to prevent it for the next time around,” said Saenz.

A shifting legal landscape

The legal battles during this redistricting cycle will look significantly different compared to the past decade. Crucially, the Supreme Court’s 2019 decision that federal courts should have no role in deciding partisan gerrymandering claims ensures the state courts will take center stage in much of the coming lawsuits.

With liberal judges generally more likely to crack down on partisan gerrymandering, the partisan lean of the judiciary in individual states will be paramount. Mid-decade redistricting decisions by courts in North Carolina and Pennsylvania suggest those justices are more open to siding with Democrats seeking to block Republicans from drawing maps that are disproportionately in their favor.

But in 2020, Cheri Beasley, the Democratic chief justice of North Carolina’s state Supreme Court narrowly lost reelection to Republican Paul Newby. The chief justice can play a large role in redistricting disputes.

Meanwhile, Florida’s state Supreme Court has taken a sharp turn to the right thanks to a slew of appointees from GOP Gov. Ron DeSantis. Even though Florida voters amended the state constitution to bar state legislators from considering politics in redistricting, the change in the judiciary has Democrats worried it may not stop Republican attempts to dismantle new Democratic districts in Orlando and St. Petersburg. Those seats were drawn in the middle of last decade, when a less conservative state Supreme Court struck down the GOP’s initial map.

Democrats have also grown nervous about what they describe as a GOP-friendly top court in Virginia, which will step into the state’s redistricting process if there’s a deadlock by the state’s commission, which is drawing the maplines for the first time.

The compressed redistricting timeline also means that legal battles over district lines may not be resolved in time for the midterm elections. “Depending on where we think litigation is necessary, we may have to make some triage decisions and pursue some cases after the 2022 election,” said Saenz, who noted that cases based on the Voting Rights Act would still land in federal court. “Even though that means elections will have occurred using faulty lines.”

But given the high-profile nature of redistricting, and the importance of what the map lines actually are heading into the midterms, strategists are hopeful that the courts will prioritize and streamline those cases.

“When a judge wants to move fast, they can,” Ward Burton said. “And judges during redistricting, on net for the most part, want to land the plane.”

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