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, 2021, 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.
Federal courts have repeatedly held that the release of official census data does not require the immediate abandonment of the existing ward map. Rather, the rule is that state and local governments must follow a reasonable plan and process to adopt an updated ward map that incorporates the new census data.
For example, in Garcia v. 2011 Legislative Reapportionment Commission, the District Court considered a challenge to the Pennsylvania general election held in November 2012. The Census Bureau had released the official decennial census data in March 2011. Because of delays in and appeals of Pennsylvania’s statutory reapportionment and redistricting process, the revised map had not been completed before the election, which occurred almost 20 months after release of the census data. The court rejected challenges asserting that using 2000 census data for the 2012 election violated the Equal Protection Clause and the Voting Rights Act, finding that “federal courts have recognized that no constitutional violation exists when an outdated legislative map is used, so long as the defendants comply with a reasonably conceived plan for periodic reapportionment.”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.