Months ahead of any of the actual mapmaking at the center of the once-in-a-decade redistricting process, emerging challenges — from fewer and less diverse applicants for the commissions than hoped for, to problems administering the census caused by the novel coronavirus — have prompted calls to correct course and even contingency plans for possible delays.
The complications add weight to the task of launching an entirely new redistricting system, after voters in 2018 approved a restructuring of the process in Colorado. The reforms are intended to increase transparency and accountability. But, equally important is the goal of avoiding a situation where courts end up drawing the maps, which is what’s happened in every redistricting cycle in Colorado for the past 40 years.
The two goals — increasing transparency and avoiding court-drawn maps — show the potential to create a paradox, where, for example, holding at least 21 public hearings, now written into the state Constitution’s redistricting procedures and aimed at increasing public involvement and oversight, could have to be fit into an abbreviated mapping period, due to delays.
But the adherence to, or the failure to follow strict procedural rules like those, has been the basis of lawsuits challenging independent redistricting commissions and the maps they produce.
Jessika Shipley, a staff member on the Colorado General Assembly Legislative Council, the nonpartisan group that handles much of the administrative part of the commissions, said the authors of the voter-approved redistricting commission put some wiggle room into the process, in case they needed to adjust to unexpected situations out of their control.
The commissions should be able to fulfill the constitutional requirements laid out in the law, even if there are delays, Shipley said.
“But don’t get me wrong,” she said, “I’m still concerned.”
Census delays from COVID-19, court battles
The decennial census, the key to the redistricting process, has seen a slower response than hoped for, causing concerns about minority participation in particular. Census researchers have observed that racial and ethnic minorities typically are underrepresented in efforts to enumerate populations, for a variety of reasons. A study published by The Urban Institute, a nonprofit think tank, last year estimated that as many as 4 million people could be undercounted during the 2020 census, with a disproportionate impact on minority populations. A mix of factors suggest minority groups could be even further affected because of COVID-19.
Whether or not an already extended census timeframe will be extended further is the matter of ongoing litigation. The end-of-July deadline was already pushed back, due to the coronavirus making the counting process more difficult. Now it’s up to courts to decide if the counting should end this month or next.
The California cities of Los Angeles, San Jose and Salinas on Sept. 24 won a federal lawsuit filed in August against the U.S. Census Bureau and the U.S. Department of Commerce, arguing that the large number of Spanish speakers in those cities are most at risk to be undercounted and that the deadline to finish the census should go until the end of October, not the end of September.
Attorneys for the agencies said during the hearing they would likely appeal, then Monday, Sept. 28, the Commerce Department announced via tweet a plan to stop the counting process by Oct. 5, the Associated Press reported, which the federal judge overseeing the case said the following day might warrant a contempt order.
The proper counting of Hispanic residents in the census has also been called into question due to President Donald Trump’s efforts last year to add a citizenship question to the census and a plan to exclude undocumented immigrants in the reapportionment calculations.
The U.S. Supreme Court thwarted the initiative, but voting rights advocates have worried that the struggle alone, because it was well-publicized, could lead to confusion about who is and isn’t allowed to participate in the census, which would, in turn, suppress response rates from some portion of Hispanic residents who should be counted.
Harris County in Texas, King County in Washington and civil rights organizations joined the California cities’ lawsuit, saying the same dynamic highlighted by the initial litigants is at play in their heavily Hispanic urban areas.
If the efforts to extend the information gathering period are successful, it could lead to delays in the compilation and dissemination of the census data, with Legislative Council staff considering how the redistricting commissions’ schedules would be affected if data isn’t delivered until as late as July, instead of the planned March 31, 2021, census data publication deadline.
That could put the state redistricting commissions in an accelerated map-drafting process, because of the need to finish new maps by late 2021, giving enough time before the 2022 elections.
“We have created a sort of parallel schedule,” Shipley said about the prospect of receiving data from the Census Bureau late.
Normally, states would have data ready early in the year of redistricting, giving several months to draft the maps. In the case of independent redistricting commissions, that time period also includes holding public hearings and getting input from various interest groups, before settling on final maps. The maps need to be ready with enough time to incorporate the changes into election procedures in time to carry out the following year’s primary elections. Generally, county elections offices will need to have the maps months in advance of those primary elections.
The pressures of being public
The language of Amendments Y and Z require the commissions to hold multiple public hearings around the state. Specifically, they have to hold at least three hearings in each congressional district, including at least one west of the Continental Divide and at least one east of the Continental Divide that is either south of El Paso County’s southern border or east of Arapahoe County’s eastern border.
The nonpartisan Legislative Council handles the initial processes of the redistricting commission, like administering the commissioner application process. They will also provide technical assistance to the commission, specifically running the mapping software that will be used next year.
Julia Jackson, a member of the Legislative Council staff who is already working on some of their redistricting commission support tasks, said she and others have discussed what it would mean if the census data is not delivered until the summer.
“We don’t know when we’re going to get our census data,” Jackson said. “If we get the Census Data early, at the original deadlines, then we are starting to draw maps, and we can start doing our public hearings as early as next May. If we don’t get our Census Data until July, which I think is a possibility that’s on the table, then we’re looking at a much more compressed schedule for those public hearings, and that would be probably like two weeks at the end of July and the beginning of August.”
Louis Pino, a Legislative Council staff member who specializes in mapping, said he’s begun testing mapping software, updating voting precincts maps and even begun using existing census data, like the American Community Survey datasets published between decennial censuses, to create hypothetical district maps with data that’s only a couple years old.
“We obviously don’t have the 2020 data, but we’re using some of the American Community Survey data to kind of look at potential areas of the state where we might have to focus on, as far as drawing lines,” Pino said during a Sept. 21 redistricting forum hosted by Colorado College, “just as a way to gauge what we might be seeing, once the 2020 decennial census data is released.”
The work by the Legislative Council now could be crucial in avoiding problems next year caused by delays or other census data issues, but the state’s new redistricting system comes with binding strictures that will need to be followed in order to keep the mapping in the hands of the citizen commissioners and out of the hands of judges.
A reflection of the state?
The guidelines for selecting commissioners also contain some rigid parameters, which counted on having a robust applicant pool, and so far that hasn’t happened.
With more than half of the application period passed, fewer than three hundred Coloradans have applied, and almost a quarter of them have been initially rejected for not meeting the qualifications.
But the process for selecting commissioners anticipated having enough applicants that the next step would be to randomly select qualified applicants, narrowing to 1,050 — 300 Democrats, 300 Republicans and 450 unaffiliated voters. Then a panel of judges would review the applicants and forward 50 Democrats, 50 Republicans and 50 unaffiliated voters to an again narrowed pool of 150 people. Finally, a process that includes legislative leaders’ selections, judicial panel selections and random selection would finalize the commission selection process.
But as of now, there’s not enough applicants to even follow the next step in the process.
On top of that, the state Constitution mandates that the commission makeup should reflect the demographic diversity of the state, and so far the applicants don’t, in matters related to gender, age, geography or, most important, racial and ethnic identity.
The racial and ethnic diversity has been emphasized, because the redistricting reforms are intended to support the goals of the Voting Rights Act, minority voting rights are a key component in the process, and minority voting rights have been at the center of many of the legal fights over redistricting.
The commission will be charged with protecting minority voting rights, by making majority-minority legislative districts where possible and by considering minority voting rights, even where majority-minority districts can’t be created.
Having representation for the minority community on the commissions, is a way to strive for inclusion and ensure that minority communities have a voice on the commissions, on top of the public input from minority communities that will be solicited to help inform the commissioners’ decisions about protecting those communities’ voting rights.
A parallel logic is at play when it comes to the geographic diversity of the commission, where at least one commissioner on each commission, but no more than two commissioners on each commission, needs to be from each congressional district. It’s another attempt, like the requirement for hearings in far-flung areas of the state, to be sure rural Colorado is included in the redistricting process.
Still on track
Even if the initial application period hasn’t produced the number or diversity of applicants hoped for, and even if census data ends up being provided later than anticipated, the commissions should still be able to meet their constitutional mandates, Shipley said.
But she said she’s still concerned about the hiccups so far.
“I would like our numbers to be much higher by now,” she said of the application process that ends Nov. 10. “But I think we’re going to get 80% of our applicants in the final two weeks of the application period.”
The coronavirus is also a factor, because where there would normally be opportunities to publicize the commission process — such as civic organization gatherings and town hall meetings — and solicit applicants, those have been largely shut down because of COVID-19. And it’s not clear yet whether the meetings will be virtual, in-person or some combination, Shipley said, likely causing some hesitation for some potential applicants.
But Shipley said the Legislative Council staff is working with some of those groups to continue to get the word out to so-far underrepresented communities. She also said it’s possible they may do more marketing soon, but budgets have been cut because of the coronavirus.
The 2011 legislative district reapportionment commission, which was the basis for some of the new redistricting commissions’ procedures, she said, was required to hold three public hearings in each congressional district, and that it was achievable, even if they don’t get started until July.
The 21 meetings, she said, are a minimum, and if data comes on the anticipated schedule, then she would recommend holding more meetings. But if it comes late, she said they would still follow the timeline for selecting commissioners, establishing all the rules and procedures needed, training the commissioners, “then hit pause until we get the data.”
Even if they only have a few weeks and can only complete the minimum number of hearings, she said they would likely do two meetings some days, traveling sometimes long distances. The 2011 commission, she recalled, once held a meeting in the afternoon in Burlington, then traveled two hours north and held a 7 p.m. meeting in Sterling.
“It would be a lot tighter and our staff will be working long days,” she said, “but if we had to do 21 meetings in July, we could.”