Census and Redistricting: Just the facts, Ma’am.

Every ten years, the population of the United States is counted by the U.S. Census Bureau, a division of the U.S. Department of Commerce. The census count is relied upon for distributing federal funding for the following decade, but it is also used to equalize voting strength among the population. 

Basic thoughts about the Census:

• Every ten years, the federal government attempts to count all people living in the United States. Yes, all people. Not just American citizens. Not just registered voters. All people.¹ 
• Information delivered to census takers must be kept confidential. It is illegal to share census data with any other government agencies or any private enterprises per Title 13 of the United States Code. Census data is not released until 72 years² after it is collected per Public Law 95-416.
• Undercounting in the census costs Mississippi money. For example, if only 5 percent of Mississippi children are undercounted in the census, the state of Mississippi stands to lose up to $600,000 in federal funds in the year 2022.
• Census numbers contribute to the allocation of funding for hospitals, fire and police departments, roads and highways, business investments, and federal allocations for various federally funded agencies (e.g., Medicaid, CHIP, WIC, SNAP, childcare, schools, school lunches, foster care, Head Start, and special education).
• For the current decade, the federal government will rely on 2020 census data to determine the distribution of approximately $1.5 trillion in annual spending in the country. For example, in 2017, Mississippi’s allocation of federal government funds drawn from the census data gleaned in 2010 was $8,675,676,000 as determined by the American Community Survey for that year.
• While children are specific recipients of much of federal monies received in Mississippi, young children are the group in Mississippi most likely to be undercounted. 
• Undercounts (including undercounting of children) occur because 27 percent of Mississippi neighborhoods are “hard to count.” The Census Bureau defines “hard to count” communities as “populations that historically have been undercounted and/or do not self-report as well as others.”
• “Hard to count” groups include undocumented immigrants, specifically “foreign nationals who lack proper authorization to be in the United States,” having either entered the U.S. without inspection according to immigration procedures, or entered the country on a temporary visa and stayed beyond the expiration date of the visa. Many of these individuals are unwilling to participate in the census because they believe that their personal information will be shared with the Immigration and Naturalization Service, a division of the Department of Homeland Security.³

Effects of the 2020 Census

Mississippi will not lose a seat in the U.S. House of Representatives, like it did in 2000 when its legislative contingent was reduced from five to four. However, Mississippi’s population did decline by 0.2 percent.⁴ This small population drop could mean a big decrease in federal funding of up to $30 million per year during this decade, and a continued population drop will assure that the state’s number of congressional seats will drop to three in 2030.

Mississippi was the only Southern state to lose population between 2010 and 2020.  Sixty-four of Mississippi’s 82 counties reported population losses. The four states that border Mississippi each experienced population increases, ranging from 2.7 percent growth in Louisiana to 8.9 percent in Tennessee. The states of Texas, North Carolina, and Florida gained enough population to increase their number of their seats in the House of Representatives.⁵ 

Mississippi’s population diversified in the last decade. Mississippi gained nearly 20,000 African American residents, 16,700 Hispanic residents, and 4,500 Asian residents. The number of individuals who identify as being of two or more races increased by 11,200.⁶ 

Mississippi’s median age is 36.7 years. The gender ratio is 51.1 percent female to 48.5 percent male.

What’s New in Redistricting?

The big news in redistricting over the last decade revolved around three U.S. Supreme Court decisions: Shelby County, Alabama v. Eric H. Holder, Jr., et al., 133 S.Ct. 2612 (2013); Evenwel v. Abbott, 136 S.Ct. 1120 (2016); and Rucho v. Common Cause, 139 S.Ct. 2484 (2019).  Each of these cases will have a great influence on how redistricting will occur for the decade beginning in 2020.

Historically, the most difficult issues that redistricting raised for certain states (including Mississippi) were those legislated by sections 4 and 5 of the Voting Rights Act of 1965.  Section 4 identified states which would be watched carefully by the Department of Justice because of their history of racism. The formula established by Section 4 was:  Did the jurisdiction use a law such as a literacy test to keep people from registering to vote?⁷ And, did less than 50 percent of the eligible population register to vote in 1964, or did less than 50 percent of those people vote in the presidential election?⁸ A positive response to these questions meant that no legislative decision made about any voting issue, including changing district lines, opening or closing a voting precinct, etc., could occur without federal government approval.

Shelby County, supra, overturned Section 4(b) of the Voting Rights Act, which mandated federal oversight of changes in voting procedure in jurisdictions that have a history of using a “test or device” to impede enfranchisement. The Supreme Court determined that, in light of current conditions in the “covered” jurisdictions, the section was now unconstitutional.⁹ Section 5 established that no “covered” jurisdiction could change its voting procedures without approval from the United States Attorney General or a three-judge federal panel in Washington D.C. This is known as the “preclearance” requirement, which formerly required all “covered” jurisdictions to prove that any proposed change in voting procedures has neither “the purpose [nor] effect of denying or abridging the right to vote on account of race or color.” When “covered” jurisdictions no longer exist (as determined by Shelby County), no jurisdiction is obligated to “preclear.”

On June 25, 2013, the Supreme Court ruled that the coverage formula in Section 4(b) of the Voting Rights Act — which determines which jurisdictions are covered by Section 5 — is unconstitutional because it is based on an old formula. As a practical matter, this decision means that Section 5 is inoperable until Congress enacts a new coverage formula, which the decision invited Congress to do.¹⁰ The effect is that, for formerly “covered” jurisdictions, the redistricting process is streamlined.¹¹ Preclearance is no longer required.  

Leaving Us with Section 2

For “covered” districts involved in redistricting (and those who are doing the redistricting) the absence of the “preclearance” requirement is a GIFT. The post Shelby redistricting focus is only on Section 2: “one man-one vote.” The “one man-one vote” rule refers to the rule that one person’s voting power ought to be roughly equivalent to another person’s within the same district.¹² But Section 2 also prohibits adopting or maintaining voting practices that result in citizens being denied equal access to the political process on account of race, color, or membership in a language minority group.¹³ In equalizing the population of districts so that the “one man-one vote” equity concept occurs, the redistricting must not deny the election process to those of race, color, or membership in a language minority group.

What is the meaning of “one man?” Evenwel v. Abbott, supra, a 2016 decision, is the one that defines what “one man” means. Until this decision, the Court had never resolved whether voting districts should contain roughly the same number of people or the same number of eligible voters. Counting all people amplifies the voting power of places that have large numbers of residents who cannot vote legally, including immigrants who are here legally but are not citizens, illegal immigrants, and children. Those places tend to be urban and vote Democratic.  Had the justices required only eligible voters to be counted, the ruling would have shifted political power from cities to rural areas, a move that would have benefitted Republicans.

The “one man-one vote” principle is not as simple as it may appear. Essentially, the right to vote includes three conceptually distinct types of rights. The right to access to the polls is representative of the right to vote on the most fundamental level. But the ability to register and vote, taken alone, does not secure meaningful political participation because district lines may be drawn in ways that effectively dilute the power of the vote. Political scientists define these as quantitative and qualitative vote dilution.¹⁴   

However, the “one man-one vote” concept enjoys tremendous popular support because it is viewed as the elemental component of democracy. However, the redistricting process has to recognize and effectively answer both quantitative and qualitative vote dilution. And to make matters more difficult, individuals involved in the redistricting process must address the fact that the source of the population figures – the census itself – has some shortcomings for redistricting purposes.  Consider this:

• Census numbers are far from perfect.  See Gaffney v. Cummings, 412 US 735, 745, n. 5 (1973). The census, by its nature, overcounts some populations, undercounts others, and is prohibited from correcting systemic errors of this sort through statistical techniques such as sampling.¹⁵ 
• Even assuming a perfect decennial census, those numbers only provide a “snapshot” of a dynamic demographic process. The census data rapidly becomes outdated as people are born, die, and move. Journal articles speaking to this issue reflect that census population numbers used for congressional elections are good for only the first of the five elections covered by each new set of census data.
• There remains a tension between the philosophical shift from counting “voters” to counting “voters and non-voters,” although the legal decision was made in Evenwel, supra. Those individuals who are responsible for the redistricting policy decisions struggle with those tensions.¹⁶ 
• Two basic ways to defy the “one man-one vote” prescription are gerrymandering¹⁷ and population shifts within the decennial period that result in malapportionment.  Gerrymandering may or may not be intentional; malapportionment is a result of an underlying freedom that our citizens and non-citizens cherish – the freedom to travel.

Wonder of Wonders:  Gerrymandering is Nonjusticiable¹⁸ (No end to “Packing” and “Cracking”)

“Packing” and “Cracking” are the tools of a successful gerrymander.  Packing wastes votes by placing extra disfavored voters in a single district. Cracking wastes votes by dividing disfavored voters between so many districts that they cannot form a majority anywhere. Packing and cracking experts can produce dramatically unfair results while still maintaining population equality among districts. And dramatically partisan ones.

And producing these unfair results is the concern of Rucho v. Common Cause, 139 S.Ct. 2482 (2019). Rucho ruled that “ ‘partisan gerrymandering claims present political questions beyond the reach of the federal courts.” Chief Justice Roberts, delivering the majority opinion, made it clear that gerrymandering can be distasteful and unjust, but state legislatures and Congress have the ability to pass laws to curb excessive partisan gerrymandering. In other words, partisan advantage is a permissible intent behind redistricting choices and any remedy to limit it is to be left to the legislature.¹⁹ However, racial gerrymandering claims remain justiciable.²⁰ Now all redistricting must focus on (1) whether gerrymandering is at work? and (2) if so, is it for racial purposes or partisan purposes, the latter being exempt from judicial scrutiny. Skilled redistricting teams can likely make gerrymandering for partisan purposes effect “packing” and “cracking” and do so without any federal scrutiny. Packing and cracking can impact communities of voters but be delivered effectively as a partisan gerrymander.

If you would like to learn more about voting rights and policy, take a look at the following nine U.S. Supreme Court decisions that have most impacted America’s voting policy and procedure.

Baker v. Carr (1962)
Westberry v. Sanders (1964)
Reynolds v. Sims (1964)
Rucho v. Common Cause (2019)
Thornburg v. Gingles (1986)
Shaw v. Reno (1993)
Miller v. Johnson (1995)
Alabama Legislative Black Caucus v. Alabama (2015)
Cooper v. Harris (2017)

Lydia Quarles is the senior policy analyst at the John C. Stennis Institute of Government at Mississippi State University.

To learn more about the census, read The Federal Census: Why People are Counted.