Delay in census results threatens 2021 redistricting

by | Apr 1, 2021 | Voting Rights

From left to right: Thomas A. Saenz, President and General Counsel, Mexican American Legal Defense and Educational Fund; Leah C. Aden, Deputy Director of Litigation, NAACP Legal Defense & Educational Fund; Terry Ao Minnis, Senior Director of the Census and Voting Programs, Asian Americans Advancing Justice | AAJC; Justin Levitt, Professor of Law, Loyola Law School

Also available in Spanish.

The drawing of electoral districts has a huge influence on the future of minority voters. Their adequate representation in politics depends on the census count.

By: Jenny Manrique, Ethnic Media Services

Redistricting in the US, which only happens once every 10 years, is threatened by delays in delivering the 2020 census data that took place in the middle of the pandemic.

Originally the United States Census Bureau, would provide the decennial survey data for redistricting to states by March 31, but due to the coronavirus setbacks, it may not be available in a user-friendly format until September 30.

“The risk is that you end up not having communities of color adequately represented in Congress, in state legislatures, and that then leads to different agendas being pursued within those policymaking bodies,” warned Thomas A. Saenz, president and general counsel of the Mexican-American Legal Defense and Educational Fund (MALDEF), during a recent press briefing hosted by Ethnic Media Services.

“As we become more partisan and polarized, we are going to have very close elections in the House and Senate … and if we fail to create majority-minority districts where warranted by the Voting Rights Act, there will not be adequate representation,” he insisted. .

In these majority-minority districts, racial or ethnic minorities make up a large enough portion of the electorate to ensure that the community can elect the candidate of their choice regardless of race.

In this context, the census has two explicit purposes: one is to count every inhabitant of the country to reallocate the 435 seats in the House of Representatives among the states, according to their population. The other is redistricting not only for Congress, but also for state legislatures, and local bodies like city councils, county boards, boards of education, community college boards, etc.

“After 1960, the Supreme Court concluded that each state and each locality must redraw their lines after the census to make the districts relatively equal in population,” Saenz explained.

The data extracted from the census determines the reallocation of $ 1.5 trillion in federal funding to the states on an annual basis, for services such as hospitals, schools and the like. And redistricting determines who lives in the district, who is running for public office, and how those officials can respond to community needs on issues such as security, or housing and immigration policies.

The census count was carried out amid attempts by the Donald Trump administration to include a question about citizenship, and to create a database of citizens to exclude undocumented people. Although the effort was not fruitful at the federal level, it echoed in jurisdictions where the right wing has sought for years to equate the database for redistricting with the voting age population rather than total population.

“That would have a devastating effect on communities of color for two reasons,” Saenz explained. “First, because particularly Latino and Asian-American communities have higher proportions of non-citizens… (Second), because it would exclude every person under the age of 18… and all communities of color have higher proportions of those under 18 than white populations.”

Gaining seats

Projections say that Texas and Florida may gain more than one seat when the official census count is turned in, and that California might lose a seat in the House of Representatives for the very first time in that state’s history.

Traditionally battlefield states like Texas, Georgia or Louisiana have been challenged in court by organizations like MALDEF because of the lines adopted by Republican legislatures and governors, who have sought to suppress the rights of minority voters.

In the past decade, Texas won four seats in the House of Representatives thanks to population growth, 80% of which came from black and brown communities. But none of the seats were assigned to minority communities, which had to be challenged in court.

“In some local jurisdictions there is not a partisan fight, but an incumbent fight against the minority communities that are emerging in that local jurisdiction, when it’s in their interest to preserve their own power,” said Justin Levitt, professor of law at LMU Loyola Law School.

“The changes to the Voting Rights Act make it even harder than usual to combat some of this discrimination in local communities.”

In 2013 the Supreme Court declared section 5 of the Voting Rights Act unconstitutional, which required some states and localities to obtain federal prior authorization before they could implement redistricting plans. Without this oversight, the maps drawn can diminish the ability of Black, Latino, Asian-American, Native American, and other minority voters to participate.

Levitt explained that those who draw the maps may consider race, ethnicity or party when drawing districts. These approaches are not entirely unconstitutional, and furthermore it is “impossible to tell” when this is the consideration, which can lead to “racial manipulation,” Levitt observed.

However, the Voting Rights Act has another provision in section 2, to attack dilutive redistricting plans, those that seek to manipulate the lines to entrench politicians in power. This vote dilution, explained Leah Aden, deputy director of litigation at NAACP Legal Defense and Educational Fund, occurs when redistricting seeks to prevent minority voters from having the same opportunities as the majority of voters, generally white, to elect their candidate of choice.

“Vote dilution typically arises in the context of something called at large elections that happen when a 50% + 1 majority of voters, (usually white) control the outcome of elections for all the seats in a particular body,” Aden said.

“Vote dilution can also occur when you crack voters of color among various electoral districts to avoid creating majority-minority districts,” she added.

That is why it is relevant that communities work on their own illustrative maps to show that it is possible to draw lines in districts where minority voters share things in common and thus fight the discriminatory practices that have traditionally been used also to define housing policies.

“Some of the excuses for (politicians) doing this are ‘to protect my party’ and we should be wary of those excuses because they’re basically excuses for racial discrimination,” Aden said.

Community participation

Another consequence of the delay in the census data is that it could mean less time for court challenges, candidates filing for upcoming elections, ballot creation, and community participation.

“One of the potential problems for the delay is that the time crunch could be used as an excuse by some jurisdictions to minimize or truncate the opportunity for the public to be involved in the redistricting process,” said Terry Ao Minnis, senior director of Census & Voting Programs at Asian Americans Advancing Justice (AAJC).

“What people can do is make sure they understand how redistricting will take place where they live… to learn the rules, get together with interested neighbors or organizations… This could result in potentially drafting maps that could better represent your community’s interest,” she said.

The panelists were optimistic about the discussion in Congress of the John Lewis Voting Rights Act, which seeks to restore the full protection of the Voting Rights Act of 1965. This bill comprises a list of categories of changes in voting rights that states can only exercise with federal authorization.

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