Thursday, April 8, 2021

Delayed Census Data and Fall 2021 Elections

by Eric Shytle, General Counsel, Municipal Association of SC 

The Equal Protection Clause of the United States Constitution and the Voting Rights Act both require that municipalities redistrict their wards to reflect population and demographic information contained in the most recently released decennial census. 

Ordinarily, the 2020 census data would already be released. This year’s data, however, has been delayed. On February 12, the Census Bureau announced that it would release redistricting data with tables by September 30. Later, the Census Bureau announced that it will release the data in a legacy format and without tables approximately a month earlier in August

Many municipalities in South Carolina have elections scheduled for this fall, and filing periods for those elections will close before the release of the census data. In any event, it will be virtually impossible for municipalities to complete the redistricting process before the November election dates. 

The federal courts have held repeatedly that no violation of federal law occurs when an outdated legislative map is used for an election, so long as the government complies with a reasonably conceived plan for periodic reapportionment

In other words, municipalities may hold their fall elections as scheduled and using the existing ward maps. Municipalities should diligently work to complete the redistricting process as quickly as practical, but they need not cancel or delay the fall elections if the new maps are not prepared in time. 

On the other hand, SC Code Section 5-15-50 allows municipalities to establish by ordinance “the time for general and special elections within the municipality.” This provision has been interpreted by courts and the Attorney General to allow reasonable extensions of the terms of incumbent councilmembers to set new election dates. It seems likely that a court would find it reasonable to extend the terms of incumbent councilmembers to allow time for redistricting. Therefore, municipalities may choose to delay the fall election until the new maps are available. 

In short, under federal and state law, municipalities may either proceed with their fall elections as planned, or they may delay these elections until redistricting is complete. The decision is ultimately one for the council, taking account of local politics, demographics and population trends. 

This recent Uptown article describes the legal background of redistricting, including the 2013 U.S. Supreme Court decision which affected the application of the Voting Rights Act.

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