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New Delay for Census Numbers

By Michael Wines and Emily Bazelon

  • Feb. 11, 2021

WASHINGTON — The delivery date for the 2020 census data used in redistricting, delayed first by the coronavirus pandemic and then by the Trump administration’s interference, now is so late that it threatens to scramble the 2022 elections, including races for Congress.

The Census Bureau announced on Friday that it has pushed back its deadline for releasing the population figures needed for drawing new districts for state legislatures and the House of Representatives until Sept. 30. That is six months beyond the usual March 31 deadline and two months beyond the July 31 date that the agency announced last month.

The holdup, which is already cause for consternation in some states, could influence the future of key districts. And with Democrats holding a slim 10-seat House majority, it even has the potential to change the balance of power in the House and some state legislatures, according to Michael Li, the senior counsel at the Brennan Center for Justice at New York University School of Law. States need the figures this year to redraw district lines for the 435 seats in the House of Representatives and for thousands of seats in state legislatures.New GuidelinesThe Centers for Disease Control and Prevention released new guidelines on Friday for how to operate schools safely during the pandemic. Here’s what you need to know.

The delay means there will be less time for the public hearings and outside comment required in many states, and less time once maps are drawn to contest new district lines in court, as often happens after redistricting.

“The concern in some of those states is that the legislators will simply use a special session to secretly pass maps with zero public scrutiny, and then count on a tight timetable to eke out at least one election cycle” before a court could require new maps to be drawn, said Kathay Feng, the redistricting and representation director at Common Cause.

The challenges extend beyond just drawing up districts. State and local election officials need time after new political maps are approved to redraw voting precincts and overhaul voter rolls to ensure that everyone is directed to the proper place to vote. And prospective candidates generally cannot file for office until they know whether they live within the new boundaries of the districts they are seeking to represent.

“States are literally sitting on their hands, asking, ‘When will the data come?’” said Jeffrey M. Wice, an adjunct professor at New York Law School and a longtime expert on census and redistricting law.

The Census Bureau’s delay stems mostly from problems the pandemic caused in last year’s counts of certain places, including college dorms and housing for agricultural workers. College students, for example, should be counted in dormitories and apartments near their schools, but the pandemic sent most students home last spring just as the census was starting. Now experts must find and locate them properly — and also ensure they are not double-counted as living with their parents.

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Such problems can be fixed, Census Bureau officials say, but doing so takes time. The location of millions of people is in play, and allotting or placing seats during reapportionment and redistricting can turn on the location of hundreds.

It remains unclear how serious the political repercussions of the delay will be, but early indications are that Democrats have more reason to worry.

By Mr. Li’s calculation in a report issued on Thursday, Republicans will most likely draw the maps for 181 House seats and Democrats for 49 seats, possibly rising to 74 if the New York Legislature (which is controlled by Democrats) chooses to override the state’s new independent redistricting commission.

The map for the rest of the seats in the House will be drawn either in states where power is split between the parties or in states with nonpartisan redistricting commissions, which have mostly proliferated in blue states like California and Virginia and purple states like Michigan.

That means Republicans, who have already shown an appetite for extreme gerrymandering in states like North Carolina and Wisconsin, could benefit disproportionately if too little time exists to contest maps drawn by legislatures for 2022 and the rest of the decade.

The biggest targets for increasing one party’s share of Congress are the fast-growing Southern states of Texas, Florida, Georgia and North Carolina, where Republicans oversee the drawing of maps through control of both houses of the legislature.

In Texas, Mr. Li expects Republicans to draw maps that would ensure Republican control of three new House seats that the state is expected to add because of population growth, and two existing seats now held by Democrats. The delay in receiving census data “could be used in some states to game the redistricting process, by leaving less time for legal challenge,” Mr. Li said.

“It used to be, for example, that Texas finished redistricting in June, which gave affected parties six months to litigate,” he said. “Now a map might not be approved until November, which gives you less time to gather evidence and expert testimony.”

Students outside a coronavirus testing site at the University of Wisconsin-Madison this month. The pandemic complicated census counts on campuses across the country.
Students outside a coronavirus testing site at the University of Wisconsin-Madison this month. The pandemic complicated census counts on campuses across the country.Credit…Lauren Justice for The New York Times

Suits that challenge redistricting often involve complicated fact-finding about whether a state has engaged in racial gerrymandering (either packing Black and Latino voters into a small number of districts to limit the scope of their political power, or spreading them thinly so they cannot easily elect a candidate).

Democrats could try to squeeze out a few more seats in states they control through gerrymandering. But outside of New York, where the Democratic-controlled Legislature has the power to reject maps drawn by an independent commission, the party has slimmer pickings, Mr. Li said.

Some Democrats are more sanguine. Population shifts in fast-growing states like Texas are concentrated in Democratic-leaning cities and suburbs, making it harder to draw districts that dilute the party’s power, said Patrick Rodenbush, a spokesman for the party’s National Democratic Redistricting Committee.

In North Carolina and Pennsylvania — which both have elected Democratic governors — state supreme courts have ruled that the Republican gerrymanders of the last redistricting cycle violate state constitutions, raising a barrier to future distorted maps.

And in other big states that Republicans controlled and gerrymandered a decade ago — Wisconsin, Michigan and Ohio among them — either Democratic governors or nonpartisan redistricting commissions place limits on overly skewed legislative maps.

For other reasons, the delay in census totals has the potential to upend map drawing in Illinois and Ohio.

Democrats control 13 of the 18 House seats in Illinois, in part because of gerrymandering. (The state’s total number could drop to 17 after the House is reapportioned this year.) But if final maps cannot be approved by Sept. 1, the Illinois Constitution shifts mapmaking power from the Democratic-controlled Legislature to a panel of four Democrats, four Republicans and one person randomly chosen from the two parties. Giving Republicans a say in map drawing would probably increase the share of seats they are likely to win.

The same could be true in the State Senate, where Democrats now control 70 percent of the chamber’s seats, and in the State House, where they hold 60 percent of them. The Legislature is aware of the Constitution’s redistricting provision, and Democrats could try to address the issue, although how is unclear.

“Illinois is an example of where the Legislature is talking about using old data to produce maps that are largely the same as they currently have — and letting people sue,” Ms. Feng, of Common Cause, said.

The reverse applies in Ohio, where a 2018 referendum amended the State Constitution to hand congressional and state legislative map duties to a bipartisan commission. The same amendment returns redistricting duties to the Republican-dominated Legislature if the commission fails to approve political maps by Oct. 31, barely a month after the Census Bureau’s current estimate for finishing population calculations.

Some experts said legal challenges to redistricting based on the Census Bureau’s delay seemed likely, from voters or candidates who would want to extend the period for drawing maps.

“If the necessary data aren’t available at the time the law says the state redistricting must be done, then a court could relax the deadline,” said Nathaniel Persily, a Stanford law professor and co-director of the Stanford-M.I.T. Healthy Elections Project. In some states, courts granted similar pandemic-related extensions for deadlines related to balloting procedures in the November election, like voting by mail.

The rationale is that “given extraordinary circumstances, we’re doing something different this time,” Mr. Persily said.

The delay in receiving the census data could also cause the completion of map drawing to bump up against candidates’ filing deadlines in states like Virginia and New Jersey, which will hold elections for the State Legislature in November, as well as states with early 2022 filing deadlines for later primary elections.

In Virginia, officials said, the delay raises the prospect of holding state legislative elections three years in a row — using old maps this year if the new ones are not finished, using new maps in 2022 and conducting scheduled legislative elections in 2023.

“Whenever this crazy process ends, election administrators have to deal with all these lines,” said Kimball W. Brace, a Washington-based redistricting consultant who usually works with Democratic politicians. “Precincts, voter registration systems — all of that is now in a shorter timetable.”

Come Election Day, he said, “Either you’re ready, or you’re not.”Correction: Feb. 12, 2021

An earlier version of this article misstated the years in which census delays raised the prospect of Virginia holding state legislative elections three years in a row. They are 2021, 2022 and 2023, not 2022, 2023 and 2024.

Michael Wines writes about voting and other election-related issues. Since joining The Times in 1988, he has covered the Justice Department, the White House, Congress, Russia, southern Africa, China and various other topics.  @miwineA version of this article appears in print on Feb. 12, 2021, Section A, Page 16 of the New York edition with the headline: Delay in Census Data Could Affect Elections For Congress in 2022. Order Reprints | Today’s Paper | Subscribe

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Vons, Pavilions to Replace Drivers with Contractors

When Dylan’s grocery delivery arrived a few days before New Years, it came with some bad news. The delivery driver who brought his groceries from Vons mentioned that drivers across the state are getting fired by Vons, Pavilions, and other California stores owned by Albertsons Companies in late February. Stores will instead turn to a third-party delivery service using independent contractors.

“I was disturbed and disappointed that Vons would eliminate these jobs. I felt like they were the only remaining company that treated delivery drivers ethically but no longer,” said Dylan.

After publication, an Albertsons representative sent the following statement: “We will transition that portion of our eCommerce operations to third-party logistics providers.” She added “While we know that this move will help us create a more efficient operation, it wasn’t a decision we made lightly or without a great deal of consideration.”

Drivers under the Albertsons Companies umbrella are employees, while Ralphs delivery is operated by Instacart and Target uses Shipt, a similar app. At Bay Area stores, drivers are unionized, and will not be affected by the layoffs. For southern California shoppers, this move leaves them without a grocery delivery option that treats drivers as employees.

Unions are vowing to fight the change, says Jim Araby, Director of Strategic Campaigns at UCFW5. “The only drivers that kept their jobs were the unionized drivers in the Bay Area. All the other drivers in California were laid off because they were non-union. We represent those drivers and they will keep their job.”

These layoffs are unsurprising after the passage of Proposition 22, which gutted worker protections while making it easier for companies to shift financial burdens onto newly-designated “independent contractors.” In a piece for KNOCK last year, Keith F. Eberl predicted this exact outcome in the opening paragraph:

“Contrary to the companies’ deceptive ad campaign and intimidating messages to their workers, Prop 22 does not preserve driver flexibility or save drivers from politicians. What Prop 22 does do is change current law so the companies can shift their costs to the driver and diminish or remove drivers’ rights, protections, and benefits. Prop 22 will also block drivers’ ability to organize so they can’t collectively bargain a contract. In addition, this proposition will block local governments from writing or enforcing protections for drivers.”

The only surprise is the speed at which Albertsons reversed course on its commitments to workers. This move comes after nearly a year of celebrating grocery store workers for feeding communities. Earlier this year, Albertsons Companies President & CEO Vivek Sankaran said the company was “taking care of our team.” Albertsons Companies “are working… to ensure that every member of our team who faces a crisis can have peace of mind that we will help them get through it.”

Albertsons was happy to reap public goodwill during the pandemic. But once Prop 22 gave the company the option of replacing workers with lower-paid contractors, they jumped at the opportunity. Employees received notice during the holidays that their employment would end one month into the new year.

Early in the pandemic, union members demanded hazard pay, additional medical leave, and employee protections during the pandemic. In March, Safeway and Northern California grocery workers reached an agreement providing these additional benefits.

Labor and management were able to cooperate in April, requesting that grocery workers be designated as first responders. In an April joint statement, Sankaran and United Food and Commercial Workers International Union (UFCW) President Marc Perrone wrote:

“This joint action is an example of how all Americans must work together to protect everyone working on the frontlines. This includes… associates at our nation’s grocery stores who are providing communities with the essential food and supplies needed to weather this public health crisis.”

Negotiations in October turned contentious, as members of the Teamsters issued a notice of potential strike due to rising healthcare costs. Lou Villavazo, who chairs the bargaining effort, told the Orange County Register that “employers have been bargaining in bad faith. We’ve had over 18 bargaining sessions with them and we provided our economic proposal … but no response.”

Organized labor made the difference for drivers in the Bay Area, who will remain as employees for now. But without the power of a union, southern California drivers lack an organizational structure through which to fight back.

Many, myself included, turned to Vons and Albertsons stores for their groceries, knowing that drivers were employed with benefits. Unionized drivers offered a clear alternative to the hellscape of gig-economy apps like Instacart.

In a March 2020 statement, Sankaran said “these times are unprecedented in the grocery industry… [a] simple ‘thank you’ doesn’t seem like quite enough.” He was right. Delivery drivers deserve healthcare, job protections, and fair wages. Workers won those fights this year because they fought as a union. With DoorDash taking over in February, that united front will be gone.

You can contact Albertsons Companies and let them know what you think of this move:

Vons Retail Store/Corporate Phone Number: 877–723–3929

Albertsons Retail Store/Corporate Phone Number: 877–723–3929

EDITOR’S NOTE: After publication, Albertson’s responded to KNOCK’s request for comment. This piece has since been edited to clarify that union drivers will not be laid off and that workers facing layoffs in Southern California are non-union, as well as to include statements from both Albertsons and UCFW5. The scheduled date of the layoffs was also corrected.