Every ten years the United States conducts a census of the population. The census is a complete count of all inhabitants in each state and territory. While there are very important non-apportionment uses for census data, the constitutional imperative is to assign seats in the House of Representatives among the states. Once seats are apportioned by Congress, states engage in a process called redistricting to define the boundaries of their congressional districts.
In a normal year, the census results necessary to begin redistricting in the states would have been available by now. This year, however, we do not expect to see these results until August. Primarily, this is due to data collection problems related to the COVID-19 pandemic, but the incompetence of the prior administration has played a role as well.
This is the first in a series of posts on the 2021 redistricting process, which requires us to understand both the census and apportionment. This post will outline the three phases of the process (census, apportionment, and redistricting), while later posts will examine specific issues such as legal cases dealing with the census count, understanding current and historical apportionment formulas, and keeping up with how the states are redistricting and what that means for the 2022 midterms and the 2024 presidential election.
Census
The United States was not the first country to utilize a census; far from it. Centuries, perhaps millennia, before the Romans coined the term census nations engaged in various forms of enumeration of those subject to their rule. The purpose of those enumerations was often for taxation, military conscription, or corvée labor (a kind of worker conscription). The Romans expanded the use and importance of the census, even using it to promote or demote individuals’ social status. But the US was the first to use the census to determine the number of representatives that would govern those enumerated.
Every ten years in April, the Census Bureau (an agency within the US Department of Commerce) begins counting every person living within the United States. It hires thousands of temporary workers to get responses in person from households that do not self-report either through the mail or online. Article I, section 2 of the Constitution requires that “the whole number of … persons”* must be counted – this is a descriptive term, not a legal term of art. It is significant that words like “residency,” “domicile,” or “citizen” were not used in describing who should be counted. The Constitution requires a full count of everyone, regardless of citizenship, immigration status, social status, age, race, religion, etc. The “whole number of … persons” of a state means just that – all persons living in that state.
The census — which is referenced as the “Enumeration” in Article I — helped solve an important political problem. The framers of the Constitution settled on a national legislature that was separated into two houses. This was a compromise between the interests of large and small states. One house would represent the states (Senate) and the other would represent the people (House of Representatives). The decision to have a fixed membership in the Senate giving each state equal representation raised no apportionment problems. The challenge was how to represent the people in the House. This challenge is complicated by three things: (1) the constitutional requirement that each state get at least one representative regardless of population; (2) the constitutional requirement that there be at least one representative for every 30,000 persons, and; (3) the cap on the number of total seats that Congress has established by law.
Apportionment
The thing to understand about redistricting and the census is that they matter because of apportionment. There are many important uses for the census, but constitutionally its role is to assist Congress in apportioning seats in the House of Representatives. There are two rules set out in the Constitution: every state gets at least one representative and there must be at least one representative for every 30,000 persons enumerated on the census. From there, it is up to Congress to choose the method for apportioning seats. Once seats are apportioned, states that have more than one district engage in a process called redistricting (it is common to see apportionment referred to as reapportionment; I will use those terms interchangeably except when referring to the original apportionment of 1790). While it might seem at a glance that counting seats is not that hard, the mathematical formulas are more complicated - primarily because of the two Constitutional rules and the cap on seats that Congress has enacted. We will dig into the apportionment formula in a later post.
We expect to see an initial estimate of apportionment soon even though the detailed census data states need for redistricting will not be available until August. Preliminary estimates suggest that Texas will pick up three seats and Florida two. Oregon and North Carolina are among the states expected to pick up one seat. Rhode Island and California are among the states expected to lose one seat. Unless the census findings surprise us, the only open question right now concerning apportionment is whether New York will lose one or two seats. If New York only loses one, it will mean Alabama loses one also. If New York loses two, Alabama will remain unchanged.
Apportionment does not just dictate how many members of the House of Representatives each state will have, it has direct implications for the Electoral College. Presidential elections are decided by the votes of the Electoral College, a temporary institution appointed either by popular vote or a state legislature every four years.** Each state has a number of Electoral Votes equivalent to the number of seats they have in both houses of Congress. Each state gets two for their Senators and then one or more based upon the number set through apportionment. This means that in 2024, Texas will have more electoral votes than it had last year while California will have one fewer (although California will still have about ten more votes overall). As it appears now – and remember, we do not have the census data yet – Biden would have won the presidency in 2020 with four fewer electoral votes under the 2021 apportionment.
Redistricting
Redistricting was traditionally done by state legislatures, subject to gubernatorial vetoes. Recently, several states have adopted independent commissions and others have hybrid-type arrangements. This may be the single most important reason to vote down ballot in every year ending in zero. Most Republican states let the legislature conduct the redistricting. Independent commissions are becoming more common in western states and fewer states that are Democratic have a traditional legislative redistricting process anymore. Important exceptions are Illinois, Maryland, and Massachusetts – the New York legislature can overrule their commission’s decision (this is one of the “hybrid” types mentioned above).
States must redistrict every ten years, but they can redistrict more often. Texas did this after the GOP captured control of the state legislature earlier this century. States also need to redistrict their state legislative seats, which they typically do by using census data.*** Although states with only one representative obviously do not need to redistrict – their representatives are at-large – even states that have no change in apportionment need to redistrict because of population shifts within states over the prior ten-year period.
It is redistricting that will occupy most of our time in this series. The census and apportionment explain why and how we do redistricting, but redistricting itself is the big political story going forward. Some of the things that will be important to consider include how the new independent commissions will work, whether the states with partisan redistricting will protect incumbents or party interests, what role a very wounded Voting Rights Act will play, and whether any states enact laws giving their legislatures the power to appoint members to the Electoral College. This will be an ongoing series over the next few months - in fact, it will almost certainly continue right up until Election Day 2022 as court battles over some district maps are almost certain to occur.
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* The missing word in the ellipses is “free.” Originally, the Constitution required a count of all free persons and 3/5 of slaves, but omitted “Indians not taxed.” The 3/5ths clause was rendered moot by the adoption of the 13th Amendment and a 1940 law declared that there were no longer any “Indians not taxed,” and consequently all Native people should be included in the census. The word “free” is now both confusing and redundant, which is why I omitted it above.
** Currently, every state appoints Electors through a popular vote. Since the coup attempt on January 6th, a number of Republican state legislators have been floating proposals to allow their state legislature to overturn the popular vote. I don’t think that would be legal unless it was clear that the popular vote was only advisory and the state legislature is the appointing authority. Even then, it’s unclear. The Constitution requires that the method of appointing Electors be decided before the Election Day date set by Congress.
*** The Constitution does not require states to use the census for this reason nor does it explicitly require the states to do any kind of legislative districting at the state level. However, the Supreme Court in Reynolds v Sims and Westberry v Sanders required states to create roughly equal districts to ensure a one person, one vote standard.