Could COVID repercussions delay NC elections in 2021 & 2022?

(August 21, 2020) There’s a particular slice of Census data that, if its delivery is delayed next year, could force rescheduling of North Carolina elections. Some local officials could even see their terms in office extended by a full year.

These days, news stories abound about changes to the operations of the 2020 US Census. As a professional redistricting nerd, I wait with bated breath for news related to one specific item: the packages of Census data alluringly named the PL 94-171 files, whose arrival essentially represents the starting gun for the redistricting process.

Since redistricting can’t begin until these files appear, and since district elections can’t begin until the redistricting has concluded, a pandemic-induced delay in the Census could have cascading results that postpone dates for electing officials all the way from local school boards to members of Congress.

I’m not the first person to point out how a delay in redistricting data could affect redistricting and election calendars.  A   bunch   of   organizations  have written about redistricting efforts by state legislatures that might need to depart from their typical schedules. But I’m also interested in local governments, and I’ve not seen coverage about how they might be affected—it’s a different story.

Even if a COVID-19 vaccine were to magically appear tomorrow, enough shifts have already happened that the downstream impacts may be hard to avoid. On top of all the other adaptations that local officials have had to navigate and manage in the last five months, it might be prudent to add this potential curveball to the watch list.

I’ll provide a visual explanation of how this could play out below … after I explain a few key underlying pieces and distinctions.

The effects on the 2021 elections will differ from those in 2022. Odd-numbered years generally see elections for cities, whereas even-numbered years bring elections for most school boards and all counties, plus the General Assembly, Congress, etc. There are a handful of exceptions, but this post will focus on the typical cases.

Not all counties, cities, or school boards elect some or all of their board members by districts, but well over 100 of them do (see map below).

And even if only a fraction of the entities on county ballots need to complete redistricting, that could affect elections across the state—especially in 2022. (Government officials usually take pains to avoid multiple rounds of primaries if at all possible.)

Two packages of Census data get a lot of media attention. The first set of state total numbers, typically provided by December 31st of the census year, determine how many seats each state will get in the next U.S. Congress. The demographic profiles of cities, counties, and states then typically begin to emerge the next May, followed steadily by more and more detailed breakdowns of results.

The PL 94-171 files (also called redistricting data or block data) typically arrive to less fanfare between the two packages above, in February and March, on a rolling schedule: some states get data earlier than others. The tables are tailored to provide the specialized information required by redistricters—and little else.

I am not an attorney. I’ve spent a good bit of time researching and verifying the dates and requirements explained below, but as I mentioned above, there are exceptions and local acts by the General Assembly that may create different situations for specific local entities. If you’re an official trying to determine whether your processes will need to be modified, you probably will want to confirm with an attorney. I’ve included some info about resources at the very end of this piece.

Others have covered in depth how Coronavirus has thrown a wrench into the Census Bureau’s game plan. I won’t rehash that story here; suffice to say it became clear early on that the collection of data would need to be delayed. In April, the deadline for completing that piece was pushed back three months.

Consequently, also in April, the  Census Bureau announced  that it would be requesting a  four-month  extension from Congress for the statutorily-required delivery of PL 94-171 data in 2021. The image below shows the typical late winter/early spring timetable for data delivery in the bottom row, with the delayed early summer contingency timetable shown in the top row. (Approval of the requested extension was included in  legislation that passed  the House of Representatives, but there has been no corresponding action in the Senate.)

Then, earlier this month, Census officials announced  a shortening  of the collection period by a month, with expressions of commitment to meeting the statutory deadline for delivering the state total data by the end of this year. As of this writing, two groups have filed suit ( one just this week ) to challenge the accelerated collection schedule, seeking a return to the extended timetable announced in April.

And just earlier this week, a  Census document  listed the pandemic-adjusted dates for the delivery of the PL 94-171 data as “Plan in Development,” instead of the dates requested back in April. So the timeline is very much up in the air, dependent on decisions by various actors and jurists.

For the purposes of this piece, I’m going to illustrate possible consequences using the PL 94-171 dates that were proposed in April (and shown in the top row of the graphic above). I’m making this choice partly because these dates could trigger more extensive changes down the line than some in-between compromise, but frankly also because I’ve had more time to think about them than the range of other possible date windows that has entered the realm of possibility in recent days.

As it happens, given the tightness of the 16-week window described above, the General Assembly has already contemplated an escape plan for municipalities that can’t redistrict in time.  NC General Statute § 160A-23.1  spells out a process whereby a city council can resolve to push the 2021 elections to the following year. However, some observers think that if such a significant data delivery delay happens, the General Assembly would act legislatively to address the issue across the state in its 2021 session.

Quick aside: some readers may be saying to themselves, “I seem to recall that in recent years the General Assembly has redrawn statewide redistricting plans in ten days or even fewer … why should it take so much longer for local governments?” It’s a great question, with a multi-step answer—one that I plan to fully explain in a future post. 😊 — [Edit: here's the  link to that post , added 12/15/20.]

As you likely expect, the redistricting schedule for elections that happen in 2022 is more roomy. But it’s not as roomy as you might think. In 2018, the General Assembly  shifted the primary  for most even-year elections from early May to early March and the start of the filing period from February to December of the year before the election. So the filing period begins less than five months after the filing period for 2021 elections—and there’s an additional constraint for counties, as we will see below.

In this scenario the relevant boards would need to look to the General Assembly for relief. One possibility would be for legislators to lift the county-specific 150-day requirement, but that still leaves a pretty constrained timetable. Another obvious fix would be to shift the 2022 election calendar statewide to what it would have been a decade ago: filing wouldn’t begin until February. Many observers predict this latter approach, since the legislature’s pursuit of the earlier Super Tuesday primary  ostensibly was for North Carolina to have more influence  on/in presidential primaries, which won’t (we hope) be a concern in 2022. Note that General Assembly and Congressional primary elections would be affected as well!

So if COVID-19 leads the Census Bureau or the courts to delay the delivery of crucial redistricting data, as Census officials proposed last spring, it’s reasonable to expect that some North Carolina local elections in 2021 could be delayed until the 2022 cycle and all 2022 primary elections could be rescheduled. Some of these shifts would be achievable by municipal boards themselves; others would need to be enacted by the General Assembly.

Some county election boards and staff, those who normally manage all their municipal elections in odd years, might find themselves with a scattering of municipal elections (those using districts) on the ballot in an even year. This particular change might actually save taxpayer money, since fewer polling places might need to be open in 2021.

I won’t state a personal preference for a particular scenario or outcome, but I will say that if the PL 94-171 numbers are delivered without any delay, then North Carolinians *probably* don’t have to worry about these election schedule changes. We’ll just have to worry about the  accuracy  of the census data, the potential inclusion of  complicating citizenship information , “ differential privacy ,” as-yet-unseen litigation that changes the census/redistricting landscape, conducting public hearings via Zoom, etc. Sigh...

[If you are a local official wondering about the upcoming redistricting process, you might consider reaching out to the newly formed  Local Redistricting Service  team of attorneys, demographers, and mapping experts, affiliated with a bipartisan 501(c)(3), and committed to providing a nonpartisan, transparent process at a fair price. Full disclosure: I am a member of this team.]

[Post edited 12/15/20 to add  link  to related StoryMap.]