State by State Analysis of
Whether Non-Citizens Will be Excluded from Redistricting Population Counts
Here's a state by state run-down of the likelihood that eleven states will exclude non-citizens from population counts for the purpose of redistricting. These are the top eleven states in terms of how much the change would harm the Democrats in state legislatures, with at least a one percent loss of seats in each.
In summary, excluding non-citizens from districting population counts is unlikely to occur in these states by legislative action, with the possible exception of AZ. However, it may come about through the initiative in AZ, CO, FL, or NV.
As of June 22, 2019, I see no constitutional amendments by initiative restricting redistricting population counts to citizens only on the AZ, CA, CO, FL or NV Secretary of State Web sites.
The table below shows the percentage of seats Democrats are predicted to lose with this exclusion of non-citizens, in both the state legislature and U.S. House for each of the 50 states. These figures come from my analysis at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2699850, which was conducted using the results of the 2014 elections and the 2010-2014 American Community Survey.
Column three of the table below displays the percentage of seats the Democrats in both chambers of the state legislature (averaged) are estimated to lose if non-citizens are excluded from population counts for purposes of redistricting, while column four does the same for the U.S. House. Column two shows the percent of a state’s population that is non-citizen for context.
Note that the analysis presented in the table doesn't exclude children: it's doubtful anyone would make the strategic blunder of combining excluding children with excluding non-citizens. The partisan consequences of excluding children are also much smaller than excluding non-citizens (see cited analysis).
Columns five and six indicate the percentage of state legislators who are Democrats in the state house and senate, respectively. Column seven reports whether a constitutional amendment is required to change redistricting standards, which is very often the case, especially in the top 11 states focused on, making excluding non-citizens from redistricting counts challenging. Of the top 11 states, only CT can have redistricting standards changed by law. Once a constitutional amendment passes the state legislature--sometimes in two separate sessions (see column nine)--it must then be ratified by the voters in a state. In many cases, that's enough to make it impossible to pass such measures before the post-2020 redistricting is underway.
A comparison of the percentage of Democrats currently in the state legislature with the vote requirements for passing a constitutional amendment (column eight) provides insight into whether changing who is counted for redistricting will come about by legislative action. If it doesn’t, the only other alternative is through the initiative process, and as the last column of the table indicates, this can happen in some key states.
It's easy to pass constitutional amendments in Arizona, with only a simple majority of legislators in one session being enough for passage, meaning the Republican controlled legislature might do so. On the other hand, a few Republican legislators in the narrowly controlled state house could join with the Democrats to block passage. If only a few Republicans lose out because of the electoral volatility caused by changing how population is counted, it would have a hard time passing.
If the legislature doesn't do it, the public might via the initiative. Such votes must be in November of even numbered years, meaning that if it isn't on the November 2020 ballot, it isn't going to happen.
If it passed here, it's true it wouldn't hurt the Democrats' ability to keep the state legislature, but it might lose them a seat in the U.S. House, or effect whether they have a super-majority for the budget, and the public could do it through the initiative process. Constitutional amendments by initiative can only be voted on in general elections, making the November 2020 election the only possible way this could happen in time for redistricting.
Current Democratic control of the legislature makes this unlikely to happen and the Democrats are unlikely to be beaten down to less than one-third of legislative seats after the 2020 elections, since a legislative vote of two-thirds is necessary to pass a state constitutional amendment (but only in one session of the legislature). In the unlikely event a measure passes in the 2021-22 biennium, it still has to be ratified in the November 2022 elections, too late for the 2022 redistricting cycle.
However, it could still happen via the initiative process. Colorado allows constitutional amendments to be ratified in odd-year elections, which occurred as recently as 2013, meaning if it isn’t on the 2020 ballot, it could be on the 2021 ballot, theoretically in time for drawing maps before the 2022 elections. It is also possible an attempt at re-redistricting through the courts could be made to redraw lines under the new standard if one were to pass in 2021 or even 2022.
CT / MD / NY / NJ
It's unlikely the Democratic state legislatures in these states will pass such a measure, and the public can't since none of them have the initiative.
A 60% majority is required in the legislature to pass a constitutional amendment, and since the Democrats have 42.5% of the seats in the State Senate, they can block passage. They don't have enough in the State House to block passage, however. Even if the Republicans pick up enough seats in 2020 to attain the super-majorities they need, the referendum approving the amendment would be held in the 2022 general election (barring a 75% vote approving it to be ratified in a special election), too late for redistricting.
That just leaves the initiative process. Initiatives amending the constitution must always occur in general elections, so if such a provision isn't put on the November 2020 ballot, excluding non-citizens from population counts isn't going to happen in FL.
The strongly Democratic legislature won't pass it, but the public could do it through the initiative process. This seems doubtful in blue Illinois.
Only a simple majority is needed to pass a state constitutional amendment here, but the Democrats control the state legislature, so it’s unlikely to happen. Furthermore, since a constitutional amendment must be passed in two sessions of the legislature, it's too late for this to be done by the 2020 redistricting cycle. If the Republicans take the legislature in 2020, pass an amendment in the 2021-22 biennium, they'd have to pass it again in 2023-24, and then have it ratified in the 2024 general election.
It could very well pass via the initiative process, however. Nevada doesn’t allow odd year votes on constitutional initiatives, so it would have to be in November of 2020.
A two-thirds majority is required in the legislature to pass a constitutional amendment, and the Democrats have a large enough minority in both chambers to block passage: 44.7% in the House, and 38.7% in the Senate. If the Republicans pick up enough seats in 2020 for the necessary super-majorities, it would be possible--theoretically--to have the amendment ratified by the public in time for redistricting. This is because the legislature is only required to pass the measure once, and also because Texas allows votes on constitutional amendments in odd-numbered years.
Since TX doesn't have the initiative, in any form, this is the only scenario in which non-citizens are excluded from population counts in TX in time for the 2022 elections. Add another reason that progressive groups will continue to send campaign resources to state legislative elections in this safely red state.
Could be done with difficulty before redistricting, since an amendment to the state constitution would have to pass now and after the November 2019 elections, which could then be ratified in the November 2020 election. Only a 50% vote would be necessary, but the Republicans currently have a bare majority.
The initiative doesn't exist in VA.