Ryan McGinley-Stempel and Michael Cohen

by RPLG Senior Associate Ryan McGinley-Stempel and 2020 RPLG Public Law Fellow Michael Cohen.

Local public agencies responding to the COVID-19 pandemic and grappling with its wide-ranging effects have yet another consideration to worry about: its impact on local redistricting deadlines.  The Census Bureau paused its decennial data collection operations across the country because of the virus, sacrificing critical time to gather the data that could affect hundreds of billions in federal funding and shift voting and trustee districts that shape the character of political representation and community services nationwide.  The delay will have a profound ripple effect on leadership at all levels of California government; officials must remain attentive to shifting deadlines and pending legislation that will dictate their responsibilities throughout the year.

Despite the potentially significant impact of the delay, many jurisdictions in the state remain unaware of how the census delay affects their redistricting obligations and deadlines. Although the California Legislature and the California Supreme Court appear poised to fix most of the potential issues arising from the census delay, there are a number of other actions that local agencies can take to prepare sooner rather than later.  In particular, officials of charter cities should consider whether any measures must be taken to extend redistricting deadlines (if any) set forth in their charters and ordinances.

Redistricting and the Census

Redistricting—the process of redrawing the boundaries of districts from which public officials are elected at the federal, state, and local level—determines the composition of districts that elect public officials at every level of government.  It is impossible to appreciate the significance of the census delay without bearing in mind the importance of the decennial redistricting and the difficulty and drawn out nature of the redistricting process.

In California, several different types of jurisdictions redistrict.  At the state level there are federal congressional districts, state legislative districts, and board of equalization districts; at the county level, supervisor districts and trustee areas for county boards of education; at the municipal level, city council districts; for school districts and community college districts, trustee areas; and for certain special districts, divisions.  These districts necessarily overlap, creating a quilt of districts at many levels of government across the state.  Some jurisdictions have been divided into districts for many years, while others only recently moved to by-district elections in the wake of the California Voting Rights Act and the explosion of ensuing litigation.

Districts in California must be drawn in compliance with state and federal constitutional and statutory requirements.  These include requirements under the Voting Rights Act, the 14th Amendment, the California Voting Rights Act, and redistricting guidelines in the California Constitution, Government Code, Elections Code, and local charters and ordinances.  Compliance with these guidelines requires data-intensive approaches and carefully executed discretion.  Some jurisdictions may elect to redistrict at will, but most districts are redrawn following the decennial census.

Redistricting also comes with significant public hearing and outreach requirements that contribute to drawn-out redistricting timelines.  At the state level, map-drawers must meet strict transparency and public engagement requirements throughout the process.1  To promote public participation during the last redistricting cycle, the state Redistricting Commission held more than 70 business meetings and 34 public hearings in 32 cities throughout the state.2  For county supervisor districts, multiple hearings are required at different stages of the redistricting process, with requirements as to timing, public outreach, and other matters of accessibility.3  The requirements are similar for charter4 and general law cities.5  Officials redistricting school districts and community college district trustee areas must hold at least one public hearing,6 as must officials in special districts.7  And special transparency rules apply to local government jurisdictions in the process of transitioning from at-large to by-district elections.8

Under normal conditions, the Census Bureau would deliver the counts to the president by December 31, 2020, and the states would receive the data no later than April 1, 2021.9 Because the Census Bureau has consistently adhered to this schedule for the last five decades, California has treated this deadline as definitive in crafting constitutional and statutory deadlines for redistricting.  The Citizen Redistricting Commission, for example, is constitutionally required to redraw and finally approve the maps for congressional, state senate, state assembly, and state board of equalization districts by August 15, 2021.10 Counties and cities, for their part, are statutorily required to adopt new maps no later than 151 days before their next regular election occurring after March 1, 2022, which works out to October 8, 2021 for the election scheduled for March 8, 2022.11

As a result of the pandemic, however, the Census Bureau’s decennial data reporting will likely be delayed from April 1, 2021 until as late as July 31, 2021.  The delay will affect this decade’s redistricting round, which already takes place within a compressed timeline, at almost every level of California government.  The Citizens Redistricting Commission, for example, could have only 15 days to meet its August 15, 2021 constitutional deadline to redraw and approve the boundary lines for congressional, state senate, state assembly, and board of equalization districts.12  If it fails to do so, the California Supreme Court may be required to appoint a special master.13  Certain special districts seeking to hold an election for a director on March 8, 2022 would need to finalize division boundaries by September 9, 2021.14 Although cities and counties would have more time to redraw their district maps, they, too, would have limited time to receive public input and finalize district maps by the October 8, 2021 statutory deadline.  And if cities and counties fail to do so timely, they could be liable for attorney’s fees and costs incurred by any resident who petitions the superior court for an order adopting supervisorial and council district boundaries, as well as the costs associated with a special master if the superior court appoints one to assist the court with adopting new district boundaries.15

Senate Bill 970 Would Change Redistricting Deadlines for Most Cities and Counties, But Not Some Charter Cities

Thankfully, pending legislation in Sacramento, SB 970, seeks to move California’s March 2022 election back to June 2022, which would give public agencies across the state some breathing room in their redistricting efforts.  The bill has met no opposition so far and is projected to be adopted later this week.  If SB 970 is adopted and signed by the Governor, local redistricting deadlines will change to the following:

Table - Census

Notably, some charter city redistricting deadlines default to the general law city deadlines, but those chartered cities that have adopted local redistricting deadlines untethered to the election date will not have their redistricting deadlines automatically delayed.16  Charter cities of the latter sort may need to take additional steps to allow for additional time to meet their local redistricting deadlines.  We recommend that officials in all charter cities familiarize themselves with any redistricting deadlines in their city’s charter or ordinances.  Those jurisdictions that have adopted redistricting deadlines that fall before December 2021 may then consider what actions they must take (e.g., placing a charter amendment on the November 2020 ballot) to give themselves sufficient time to adopt new maps.

Pending Litigation Before the California Supreme Court Could Extend the Deadlines for the Citizens Redistricting Commission

What about the August 15, 2021 deadline for the Citizens Redistricting Commission to redistrict federal congressional, state legislative, and board of equalization districts?  Because this deadline is a creature of the California Constitution,17 not statute, it cannot be extended by the Legislature or the Governor even through the Governor’s broad emergency powers.  Must the Citizens Redistricting Commission redraw these districts in only two weeks to meet the state constitutional deadline if Congress allows the Census Bureau to delay its decennial data reporting until July 31, 2021?

The good news is that the California Legislature is being proactive on this front, too, petitioning the California Supreme Court in Legislature of the State of California v. Padilla (S262530) to extend the deadline in order to effectuate the California Constitution’s intended purpose of requiring the Citizens Redistricting Commission to redraw congressional, state senate, state assembly, and board of equalization district maps with maximum public participation.  Given that the Court has already notified the parties it is seriously considering granting the petition,18 in our view, there is a good chance that the Court will extend the deadlines for redistricting at the state level.

Key Takeaways for Local Public Agencies

The census delay, SB 970, and emergency writ petition in Legislature of the State of California v. Padilla will change most redistricting deadlines throughout California.  Certainty regarding these deadlines should be possible within the next month.19  But the consequences of missing these deadlines could be costly, as courts may be asked to intervene and direct special masters to hire personnel, purchase technology, and incur other significant costs for which the county or city would be liable.20  To avoid these consequences, jurisdictions can prepare now to meet redistricting deadlines that are altered or have become more compressed.  In particular, we recommend that:

  • Officials in all jurisdictions monitor the dates and deadlines that are currently in flux:
    • The census data reporting date, which is subject to the Census Bureau meeting its publicized deadlines;
    • The 2022 election date, which is likely to change because of SB 970; and
    • The state’s Citizens Redistricting Commission deadline, which may change depending on the California Supreme Court’s ruling in Legislature of the State of California v. Padilla
  • Cities and counties with redistricting deadlines tied to the 2022 election date prioritize crafting a new schedule that front-loads hearings while pushing back internal deadlines by four months to ensure they have enough time to meet their redistricting deadlines
  • Cities and counties review their candidate filing deadlines
  • Officials in all charter cities familiarize themselves with the redistricting deadlines in their city’s charter or ordinances and consider whether they need to seek more time to adopt new maps through judicial action, legislation or charter amendment
  • Jurisdictions notify their residents about the delay as soon as possible.

1 – Cal. Const. art. XXI; see also Gov. Code § 8253(a)(7) (The Commission must “establish and implement an open hearing process for public input and deliberation that shall be subject to public notice and promoted through a thorough outreach program to solicit broad public participation in the redistricting public review process”).

2 – Vandermost v. Bowen, 53 Cal. 4th 421, 445-46 (2012).

3 -Elec. Code §§ 21507-21508.

4 – Elec. Code §§ 21627-21628.

5 – Elec. Code §§ 21607-21608.

6 – Educ. Code § 5019(c)(2).

7 – Elec. Code § 22001.

8 – Elec. Code § 10010.

9 – The deadlines are set in federal law at 13 U.S.C. § 141(b) and 2 U.S.C. §§ 2a(a)-(b).

10 – Cal. Const., art. XXI, § 2(g).

11 – Elec. Code §§ 21501 (counties), 21622 (cities).

12 – Cal. Const., art. XXI, § 2(g).

13 – Cal. Const., art. XXI, §§ 2(j), 3.

14 – Elec. Code § 22000(d) (providing that no change in special district division boundaries following the decennial census “may be made within 180 days preceding the election of any director”).

15 – Elec. Code §§ 21509(a) & (b)(2) (counties), 21609(a) & (b)(2) (cities).

16 – See Elec. Code § 21622(b).

17 – See Cal. Const., art. XII, § 2(g).

18 – See Legislature of the State of California v. Padilla, No. S262530, Docket, Order dated June 22, 2020.

19 – If the Court ultimately decides to grant the emergency petition in Legislature of the State of California v. Padilla, it is likely to do so by July 13, 2020, which is the last day that the Legislature will have time to decide whether to put a constitutional amendment on the November 2020 ballot asking voters to allow the Citizens Redistricting Commission more time to do its work. Although the California Assembly is on recess, the Speaker has called an irregular meeting to be held on the week of June 22. The Assembly is likely to pass SB 970 during that session. Once Governor Newsom signs the bill, jurisdictions can be certain about the 2022 election date. Otherwise, the bill is likely to become law early in the next legislative session, which commences on July 13.

20 – See Elec. Code §§ 21509, 21609, 21629 (setting out the required procedures for counties, general law cities, and charter cities that miss their redistricting deadline).