It’s like the ceremonial first pitch at the start of baseball season.
Monday, a handful of plaintiffs — including redistricting expert Peter Wattson and former Ramsey County elections supervisor Joe Mansky — filed a lawsuit in state court arguing that Minnesota’s current legislative and congressional districts are unconstitutional. The reason: they are no longer of equal population.
That’s not really contested. Ten years after the last U.S. Census and the last redrawing of legislative and congressional district maps, population growth and changes in in-state migration have left some districts with more people than average — and some with fewer. That’s why the Census was done again last year, and why state lawmakers are preparing to redraw the lines based on the new population numbers.
The purpose of the lawsuit, Peter Wattson, et al v. Secretary of State Steve Simon, is to put the issue before the courts in case the Legislature fails to agree on new political map.
That is a good bet, given that the Legislature has failed to agree on redistricting for the last 50 years. The impacts of the lines are so significant, potentially giving one party an election advantage for a decade, that it makes it tough to cut a deal, and the courts have repeatedly had to step in to get a map done.
Lawsuits like the one filed Monday are a vehicle for that intervention. “It’s to get the ball rolling,” Wattson said Monday.
In fact, the Minnesota Supreme Court can accept jurisdiction and then hold off on any action until the Legislature fails. In the meantime, the court can assign staff and give them time to become familiar with the principles that guide redistricting and the technology that makes it possible.
Filed in Carver County, the lawsuit is nearly identical to one filed 10 years ago, which was nearly identical to one filed 10 years before that, Wattson said. They all point out that the U.S. Constitution requires districts to be as close to equal in population as possible.
The lead attorney in the case is James H. Gilbert, who was an associate justice of the Minnesota Supreme Court from 1998 to 2004. Wattson has been involved in redistricting for more than 50 years: as an attorney working for the state from 1971 to 2011 and briefly for Gov. Mark Dayton before retiring. The other plaintiffs, Wattson said, are either friends or relatives of his, all chosen because they live in areas that would be unfairly treated should their districts not be redrawn. That is, they live in areas with larger populations than other areas of the state and would be denied one person-one vote rights if the lines aren’t redrawn.
The suit requests that the court “retains jurisdiction of this action to determine whether the Legislature has enacted a law or laws establishing new Minnesota congressional and legislative districts in conformity with the Minnesota and United States Constitutions and the apportionment of congressional seats to the State of Minnesota.”
The suit also asks that if the Minnesota Legislature fails to draw new congressional legislative districts “in accordance with constitutional requirements” before February 15, 2022, “this Court will consider evidence, determine, and order valid plans for new Minnesota congressional and legislative districts.”
Delays complicate map-drawing
Redistricting is always challenging for lawmakers, but especially when the two major political parties share power, as is currently the case at the Minnesota Capitol. In each of the last five redistricting cycles, Minnesota courts have stepped in to draw plans when past Legislatures and past governors couldn’t agree.
This time, it will be even more challenging because of delays by the U.S. Census in getting population data to the states. The delay is partially due to the pandemic and partially due to political decisions by the Trump Administration over the counting of undocumented immigrants.
The legal deadline for the Census to tell the president and Congress the population of each state — and therefore the size of each state’s congressional delegation — was Dec. 31. But that information is now not expected until April 30. That will be the official word on whether Minnesota retains all eight of it’s congressional districts or loses one, as is expected. Election Data Services, which analyses population data as it applies to reapportionment, estimates the state will lose that seat for want of 25,554 residents.
The legal deadline for the Census to deliver the data that states need to draw redistricting maps — called block-level data — is normally April 1. But now the Census says it is hoping to deliver that information to all states by the end of September 2021. That will make it impossible for the House and Senate to prepare legislative and congressional maps by the end of the 2021 regular session, which is set to adjourn May 17.
“It’s disappointing to see that,” said Sen. Mark Johnson, the East Grand Forks Republican who is chair of the Senate Redistricting Committee. “I was hoping to release some maps prior to the end of session, so we would have time to digest and negotiate a compromise.
“This makes it considerably more difficult,” he said.
What now faces Johnson’s committee, and that of his counterpart in the House, Rep. Mary Murphy, DFL-Hermantown, is working in the interim to try to draw maps and reach deals — and then asking for a special session to adopt them. Lawmakers could act in 2022, but the regular session that year likely won’t begin until the second week of February.
Johnson’s committee has held two hearings to get background on the process and its history but has no other meetings scheduled. A statewide tour to take testimony from residents is still in the works, but the timing has been in flux because of Census delays, Johnson said.
Wattson said he thinks the Census delays will have less impact on the process than some predict, since drawing maps is relatively easy once the block-level data arrives. Mapping software based on the Census data can be run on a laptop computer, he said. It is the political decisions that go into those maps that take time and getting data sooner or later doesn’t change the political makeup of the House and Senate with DFLers in control of the former and Republicans in control of the latter.
“Drawing the map is not the hard part. It’s not rocket science,” Wattson said. “What’s difficult is getting the political agreement.”
The court, while accepting cases like the one filed Monday and appointing panels of appellate judges to oversee map drawing over the summer, hasn’t typically taken action until later in the year. Ten years ago, the courts didn’t adopt redistricting principles — guidelines on how to deal with issues like incumbency, minority populations and protecting communities of interest — until Nov. 4, 2011, didn’t hold oral arguments until Jan. 4, 2012 and didn’t adopt a plan until Jan. 21, 2012.
“It’s not a big deal to be drawing a map starting October 1st if you are prepared, if you’ve hired the staff, if they’ve had some practice at drawing maps,” Wattson said. “There’s basically no hurry once the court knows they’ll be called upon to do this once again.”
Minnesota led the nation in self-response rates for the Census, but that doesn’t mean it will get its data any sooner than any other state, and the process will be more compact because of the delays.
And it isn’t just congressional and legislative maps that will be affected. Local governments with population-based wards and districts also need the information. While those processes sometimes wait for the state maps to be drawn, local governments will get block-level data at the same time as the state and can start working in the fall.
Susan Brower, the Minnesota state demographer who coordinated the state’s 2020 effort to boost participation in the Census, said she wasn’t ready to concede the state’s 8th congressional seat, despite projections that show it just below the line for retaining it.
“There’s enough known error in the data that people are using for those projections to leave some room for hope,” she said. “It’s close enough that we could keep it. I’m not making that prediction, but it’s within the realm of possibility and not making a huge leap anywhere.”