The COVID-19 pandemic threw off a whole lot of political events — including when critical U.S. Census data would be ready, and that delay could push back redistricting and even elections.
The Census Bureau announced last week that it would deliver redistricting data to the states on Sept. 30. That’s highly problematic for states with strict deadlines before that date to finish the once-every-10-years process, like Illinois.
But Missouri has the opposite problem. Because of the amount of time built into the process to draw state House and Senate lines, it’s not out of the question that there won’t be a resolution until March or April of next year — which is prompting some policymakers to consider whether to delay candidate filing. As of now, candidate filing is slated to start in late February of next year and run through late March.
“The idea of moving candidate filing back has come up from legislators,” said Secretary of State Jay Ashcroft. “My instinctive response is we know how to do elections, don’t mess with deadlines 'cause something always breaks when we do that. But that doesn’t mean we can’t. We moved the municipal elections last year. That was hard for me to support, but it seemed like the right thing to do at the time.”
Others are dismissing the idea that Missouri has too much time to come to a satisfactory conclusion on state legislative redistricting. That scenario, said Loyola Marymount professor Justin Levitt, assumes that Republicans and Democrats on state legislative redistricting committees will deadlock — as they have in previous years.
“Some states are working on deadlines that are set by state constitutions, so they'll need to ask the courts to fix that — and Missouri doesn't have that problem,” said Levitt, a national expert in redistricting. “So, it is true that it's a little bit of a mess. But I don't think it's a giant mess. It compresses the time that the commissioners will have to draw the lines. And it compressed the time for legislators to draw congressional lines.
“Both legislators and commissioners can do a fair amount before the census data are released,” he added.
A long clock
Missouri’s dilemma is relatively straightforward: When voters approved Amendment 3 last year, they locked in the Missouri Constitution a timeline giving commissioners initially responsible for drawing state House and Senate maps a lot of time to complete their work. And there’s no way to shorten the amount of time they have through legislation, since the timeline is baked into the constitution.
“Our system is designed to allow for substantial deliberation among those committee members,” said Eddie Greim, a Kansas City attorney who answered questions from lawmakers who placed Amendment 3 on the ballot. “Many other states have a similar system. And these Census delays will likely cause headaches for all of those states.”
Here’s the state legislative redistricting timeline:
- As soon as state population numbers are sent to President Joe Biden, the two major political parties have 60 days to send commission nominees to Gov. Mike Parson. Once that happens, Parson has 30 days to fill out the 20-person House and Senate committees that are split evenly between Republicans and Democrats.
- The Census Bureau is supposed to send population numbers to Biden on April 30. So if the entire 90 days were expended, the two commissions would be appointed on July 29.
- The commissions would then be in place for more than two months before they have the data needed to actually draw maps. While the commissioners could hold hearings where they talk about philosophical approaches to redrawing House and Senate districts, they couldn’t actually start drawing potential maps until at least Sept. 30.
- Once they have that data, the commissions have to come up with a preliminary map by Dec. 29. And if at least 14 out of 20 commissioners don’t vote to approve a final map by Jan. 29, then a panel of appellate judges gains responsibility for redistricting.
House and Senate commissions have deadlocked six out of eight times since 1991.
“If you look at this history, they deadlock,” said Jim Layton, an attorney who handled various redistricting cases for the Missouri attorney general’s office.
Here come the judges
The panel of judges, who are appointed by the Missouri Supreme Court, would have 90 days to come up with House and Senate maps. If they take the maximum amount of time allowable after commissions deadlock, those judges would complete their work on April 29 — well past when the scheduled filing period for the 2022 election cycle is supposed to end.
Greim, though, pointed out that the judicial panels didn’t take 90 days to finish their work during the 2011 redistricting process.
“I wouldn’t be surprised if the judges worked to try and avoid those problems,” Greim said. “I wouldn’t be surprised if they didn’t take their full time. But you have to consider litigation.”
Layton said the potential success of a lawsuit makes it difficult to figure out when’s the best time to push back the filing period for candidates.
“The delay by the Census Bureau does lead to timing problems for legislative redistricting in Missouri,” he said.
Too pessimistic?
Levitt, though, said there are plenty of ways to avoid these doomsday scenarios.
For one thing, the commissioners could be appointed much more quickly than prescribed in the constitution. The congressional committees and state parties responsible for coming up with nominees, Levitt said, could make their decisions in less than 60 days — and Parson could decide on the commissioners in less than 30 days.
Levitt also said that commissioners can do important work before they actually get the data.
“Commissions can do a fair amount before the census data are released, including work with projections,” Levitt said. “Not to draw the lines, as you can’t use projections to draw lines, but to see which areas have likely grown and areas have likely shrunk. That is, they'll know where they'll probably have to make districts bigger or make them smaller.”
He also said that commissions can hold hearings to get input. And he said the delay may spur the congressional committees and state parties that supply the nominees to Parson to find people that are more willing to compromise.
“I think it honestly depends on how freaked out the incumbents are not knowing where their districts are likely to be,” Levitt said. “They have a tremendous amount of control over how stubborn the commissioners are and how much they're willing to compromise. So if they appoint people who are willing to compromise a little bit, then there'll be a lot more certainty earlier in the process. If they don't, then what they're staring down the barrel of is not knowing where the district lines are shortly before filing for primaries.”
While Missouri’s state legislative redistricting timeline is in flux, the state’s congressional process is less likely to hit up against the filing period.
That’s because state lawmakers are responsible for drawing congressional boundaries. Legislators could pass a map during a special session in November or December — well before the current start of filing in February.
It would be up to Parson to call lawmakers back to Jefferson City for redistricting. Parson spokeswoman Kelli Jones said the governor's office is "open to any collaboration that may help make the process go smoother given the repeated and significant delays from the federal government."
Illinois issues
Illinois has a much bigger issue than Missouri. It has strict deadlines in its constitution for state lawmakers to draw congressional and state legislative maps. And based on the timeline, a bipartisan commission that would be responsible for redistricting in the case of a legislative deadlock would only have five days to draw maps.
Levitt said a potential solution for this is for a court to move the deadline for lawmakers to act.
“Given that, I think the state Supreme Court is going to do exactly what California did, which is say, ‘You got a couple extra months,’” Levitt said. “These are truly unprecedented circumstances. The census has never been delayed.”
He also said that Missouri and Illinois are not alone, adding that every state is going to have issues completing its redistricting process.
“Every state is going to be a little uncomfortable with this. There's no way around it,” Levitt said. “And frankly, if we're going to do the census once, I think it's safer to have it right then quick. Because this affects a decade's worth of not only representation but also funding.”
Follow Jason on Twitter: @jrosenbaum
