Once every ten years, the US Constitution requires a count of all persons residing in the country for the purpose of reapportioning the US House of Representatives. The Census Bureau uses this count to determine how many house seats each state is entitled to. From there, each state draws its own congressional maps using the census data; here in Michigan, we have an independent citizens redistricting commission to draw both congressional districts and state house and senate districts.
While the independent citizens redistricting commission gets all the headlines, 83 lesser-known commissions are busy drawing county commissioner districts across Michigan. Each county has an apportionment commission made up of the county clerk, prosecutor, and treasurer plus the statutory chairperson of the two largest political parties in the county. These commissions are charged with using the “latest official published census figures” to draw county commission districts that are contiguous, compact, and that do not split municipalities unless necessary. All of this must be done in a strict statutory timeline.
Like so many things, COVID-19 has caused issues and delays with the count and reporting of census figures. As a result, county apportionment commissions are unable to confidently ascertain when the clock began to run and when apportionment plans must be submitted to the clerk and Secretary of State.
The Typical Census Process
The Census Bureau generally collects data on all persons residing in the United States over the course of a year. The Bureau then publishes the data – which includes information like number of persons, race, ethnicity, gender, ages, etc. – for each block-level in the country. States and their political subdivisions use the block-level data to draw districts that are compliant with the Voting Rights Act and other applicable voting rights legislation.
The census data is usually published all at once in single format, usually on or around April 1. This year’s data was scheduled to be released on March 30 as a formatted and tabulated data set. However, delays caused by COVID-19 prevented the release. The Bureau, aware that many states had statutory deadlines based on the typical April 1 release date, took the unusual step to release the data in two different formats.
On August 12, 2021, the Bureau released the census figures in a “legacy” format. This requires anyone using the data to process and tabulate the data before it can be used to draw districts. The legacy format is the format in which both the 2000 and 2010 census figures were released.
On September 16, 2021, the Bureau released identical census figures in the formatted, tabulated datasets that it originally intended to release on March 30. The underlying data is identical to that published in the legacy format, but more user-friendly.
The County Apportionment Act
The County Apportionment Act requires each county apportionment commission submit a plan to the county clerk “within 60 days but not less than 30 days after the latest official published census figures are available[.]” MCL 46.407 (emphasis added). If the apportionment does not submit a plan within that timeframe (or within an extension granted by a court), it must select a qualifying map submitted by a registered voter in the county. In other words, the commission loses its ability to draw the districts and must instead adopt one drawn by a registered voter in the county so long as that map meets all the legal requirements.
The Commencement Date
The current issue stems from what date is considered the “latest official published census figures.” If August 12 is the commencement date, the plan must be adopted between September 10 and October 11, 2021. If September 16 is the commencement date, the plan must be adopted between October 16 and November 15, 2021. Any plan adopted outside of the proper timeframe is ineligible and will lead to a resident-drawn map being selected.
In one camp, counties and their counsel argue the word “publish” plainly means “to make generally known” or “to disseminate to the public.” The Census Bureau made the official data available to the public on August 12. The Bureau published on August 12 what it termed “official data” so that “states may use these data in redrawing congressional, legislative, and local district boundaries.” In the release, the Bureau acknowledged it also will deliver the “final” redistricting data toolkit to all states in September to make the data easier to use. The statute, however, requires the 60-day deadline to start when the data is published, not when it is published in the most user-friendly method.
In the other camp, some counties and the state of Michigan argue that the term “latest” in “latest official published census figures” modifies “figures” and means the census figures published most recently. Here, because the September 16 data is published more recently than the August 12 data, it is the “latest” official data. Therefore, the commencement date is September 16.
The state’s argument is likely wrong for two reasons. First, “latest” refers to its nearest reasonable referent, which would be “census.” The legislature, in drafting MCL 41.407, needed to differentiate between the current decennial census, and the census taken 10 years prior. In section 401 of the County Apportionment Act, the legislature uses the phrase “latest United States official decennial census figures” to refer to the most recent census taken, not to the most recent published figures. Second, if “latest” just meant the most recent census figures released in a different format, the apportionment commissions would have no idea if a publication of figures is the final and “latest” publication. Conceivably, the Bureau could release the same data in a new format (e.g., charts instead of tables) years after the initial publication. Would this invalidate the district maps drawn within 60 days of the first release and restart the process? Presumably, no.
The Counties’ Options
In recent weeks, the Court of Appeals has granted petitions from various counties requesting an extended deadline due to the conflicting interpretations of “latest official census figures.” The extension gives the counties confidence in the deadline and confidence that their adopted plans will withstand any challenge to the process. Alternatively, counties could adopt a plan within one of the two disputed timeframes and defend its process should a registered elector challenge it in court. Ultimately, until a court determines the actual commencement date, it is unclear whether October 11 or November 15 is the deadline.