Census, Reapportionment, and Redistricting
A decennial national census, during which every person in the country is counted, is required by Article 1, Section 2 of the U.S. Constitution. This count is one of the foundations of democracy in the United States. The number of voting members of the U.S. House of Representatives was fixed by law at 435 in 1929. But as populations rise in some states and fall in others, and because state population is the basis of representation in that body, it is necessary periodically to adjust the number of representatives each state elects to the House. States with higher populations get more representatives so that the proportion of representation in the House reflects the relative populations of the states. This process is called reapportionment. Just completed, in 2021 reapportionment resulted in increased representation in the House for Texas, Florida, North Carolina, Colorado, Oregon, and Montana; and decreased representation for California, New York, Illinois, Pennsylvania, Ohio, Michigan, and West Virginia. For New York, this is not new and part of a half a century plus trend: the state’s number of House members has declined after each census since 1950. It dropped by one seat again this year. The number of seats is fixed, and the population is dynamic, so a state can actually gain population and still lose seats since its proportion of the total population has decreased.
Voting is a constitutional right. Every citizen is supposed to have a vote, and everyone’s vote is supposed to count equally. Many of our elected officials at the national, state, and local levels are elected from districts. Over time, district populations change. In order for everyone’s vote to count equally, the districts have to be roughly the same population. For the U.S. House of Representatives, the districts must be exactly equal. Using the census data, these districts are examined every ten years, and if the variation in population between districts exceeds the legally acceptable margin (typically +/- 5% for state and local districts) then the lines of those districts have to be redrawn. This process is called redistricting.
In addition to this, the Voting Rights act of 1965 prohibits drawing district lines in a way that would disadvantage or disenfranchise protected minority populations. The racial and ethnic data used to make those determinations is also collected from the decennial census.
The census has other crucial uses as well. For example, census data is used to distribute roughly $1.5 trillion in federal aid annually.
So what happens when the census is flawed and delayed? We are in the process of finding out now.
At its onset, the 2020 decennial census was poised to be the most comprehensive in the history of the United States. For the first time, questionnaires could be completed online or the phone, and the paper option was still available. Physical confirmations of addresses were no longer necessary as the bureau could utilize high-resolution aerial images to do most of that work, supplemented by census takers to confirm what could not be established digitally. Volunteers mobilized to urge people to complete the census.
Then two problems arose. One was political/administrative, that President Trump and Republicans in Congress tried to exclude undocumented immigrants from the count, and the other was external: the global pandemic.
Initially President Trump directed the Census Bureau to include a citizenship question on the questionnaire. In April 2019, the Supreme Court struck down this directive in Department of Commerce v. New York (18-966). President Trump’s response was to direct the Census Bureau to use administrative records to determine respondents who were undocumented immigrants, and thereby create a tally for their exclusion in reapportionment.
On January 18th 2021, the director of the Census Bureau, Steven Dillingham resigned, effective on inauguration day. Dillingham was besieged by whistleblower complaints that he was pressured to release a tally of undocumented immigrants, regardless of accuracy, to assist President Trump in excluding them from congressional reapportionment.
The global pandemic added unexpected delays and difficulties in collecting the census count because it limited face-to-face interactions. The most difficult populations to reach, often the poor and people of color, are less likely to fill out the questionnaire online or by the phone. Many activist organizations were pushing a grassroots movement for a “complete count”, but absent the ability to robustly collect data in person, undercounted populations became more difficult to reach.
There are always anomalies within the data collected that have to be investigated and corrected. The Census uses statistical methods to weight the responses to its questionnaire to give the most accurate population count possible. The more complete the count, the more accurate the weighting methods.
This year, the push to complete the census on time despite the issues with data collection left little time for correction. In fact it seems that the directives to shorten the census schedule actually had the opposite effect, and contributed to the census delays.
The statutory deadline for the Census Bureau to provide an accurate count to Congress for the purposes of reapportionment was December 31st, 2020. That deadline has past, and no count has been certified. This creates a cascading problem, as the statutory deadline to provide redistricting data by March 31st, 2021, also was not met.
Once sworn in, President Biden revoked President Trump’s controversial memo directing the Census Bureau not to count undocumented immigrants. It is unclear how this will impact the release of the census data, but in the interim, the bureau released the state wide counts for reapportionment on April 26th, 2021, four months after the statutory deadline. The detailed data for redistricting is not expected to be complete until September 2021.
This brief summary of recent events paints a dire picture. Statutory deadlines have come and gone, questions remain about the validity and completeness of census data, and throughout the process fears of political manipulation have overshadowed a government function that should be very straightforward.
So what comes next? Regarding reapportionment, undercounting poor, urban, and populations of color disadvantages traditionally blue states where those populations reside. New York will lose one Congressperson in this process, having missed the cutoff for retaining its entire current delegation by only 89 people. Nonetheless, this outcome was a surprise though as the 2019 Census American Community Survey predicted that New York had lost population when the 2020 Census showed it actually gained population, and because many had predicted a worse loss of two seats.
Unlike in most states, the size of New York’s upper house is not fixed in law. In the last reapportionment process the legislature created a 63rd State Senate district; there was a fierce political and legal battle to ensure that it had a Republican majority. The New York State Senate is reapportioned using a constitutional formula derived in 1894 which is both archaic, and specifically designed to shift political representation, and therefore power, north of New York City to the more suburban and rural areas. The U.S. Supreme Court’ 1964 one-person-one vote decision notwithstanding, some of these provisions still have force and effect. In Legislative Principles (Houghton Mifflin Co. ,1930, pp. 365) Robert Luce argues that this shift of power is equitable because the people in cities have a shared interest citywide, and not divergent interests from district to district. When the representatives from all of the districts within a large city are combined, this collective interest of the city overpowers the distinct and different interests of vastly more numerous smaller places.
There is some speculation that the lion’s share of the population gain reported in the 2020 Census will be geographically located in New York City and its surrounding metropolitan commuter area (including Westchester, Rockland, Putnam, Orange, and Dutchess Counties in the Hudson Valley). The Empire Center calculates that there will be a net shift of five to seven Assembly seats and two or three State Senate seats to this “downstate” region.
Delays in the data mean delays in reapportionment, and those delays push the redistricting process further and further back. In New York there are constitutional deadlines of when reapportionment and redistricting are to take place, and it is unclear what happens if they are not met. If history is any indication though, the state will make do with what it has when it has it, and amend or ignore the statutory timing requirements.
History provides an example. Between 1917 and 1941, New York State didn’t reapportion its legislature at all: “The Democratic Party obtained control of both houses of the State legislature and the Governorship in the late 1930’s. Despite the concerted efforts of the statewide party leaders, the Manhattan Democrats, joining with Republican legislators, were able to defeat any apportionment legislation. Manhattan opposition was based on the fact that it would lose representatives while other portions of Democratic New York City would gain representatives.” (Advisory Commission on Intergovernmental Relations Report on the Apportionment of State Legislatures, 1962, pp. 21).