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Census delay might make legislative redistricting impossible, or force a September ’21 primary

Worst-case scenario: Senate, Assembly elections in 2021, 2022 and 2023

By David Wildstein, April 16 2020 3:39 am


A plan to delay the certification of the U.S. Census by four months as a result of the coronavirus pandemic will almost certainly mean that the 2021 New Jersey primary election will be pushed to late summer and possibly after Labor Day.

Many New Jersey officials are quickly coming to the conclusion that the Trump administration’s proposal to delay the final data needed to draw new legislative districts until July 31, 2021 will put New Jersey on a collision course with the State Constitution and a multitude of election laws.

The State Constitution requires districts to be redrawn at the start of each decade to ensure equal representation reflecting the state’s population and demographic shifts.  It also depends upon an assumption out of New Jersey’s control, that the federal government will provide the state with on-time counts.

To be clear, there is no certainty that a new map can be drawn at all in 2021, especially if COVID-19 requires additional delays in completing the census.

It’s possible that next year’s legislative races could be conducted under the current map, or even a temporary map using Census population estimate.  That could push off new districts until 2023 – or in a more complex scenario, even require legislative elections under a new map in 2022.

A worst-case scenario for some might be State Senate and Assembly elections in 2021, 2022 and again in 2023.

2022 legislative races could be deeply affected by which party occupies the White House.  The 1947 New Jersey Constitutional Convention widely debated whether to hold gubernatorial and legislative elections in federal election years and specifically decided against it.

Through courtesy, not by law, the U.S. Census has provided New Jersey and four other states that hold legislative elections in the year after the census with early data.

In 2011, final census numbers arrived on February 3 and the map was ready for a June primary with just a small extension of the filing deadline.  In 2001, when the number didn’t arrive until March 8, the primary was pushed to June 25.

Right now, there are many more questions that answers.

Gov. Phil Murphy and the legislature will need to decide if they are willing to hold a June 8, 2021 gubernatorial primary that includes county, local and party offices and a separate one for the State Senate and General Assembly after the new maps are drawn.

It’s more likely that all primaries would he held at once.

That would lengthen the primary election season and offer an especially short runway to the general election, similar to the way New York holds September primaries and November generals.

Most political experts contacted by the New Jersey Globe seem to agree that at least now, a September primary might be advantageous to Murphy’s re-election.

Among other things, a September primary would dramatically affect the ability of a Republican gubernatorial candidate to qualify for a maximum match of public financing dollars for a general election held eight weeks later.

As a footnote, this could mean another extension of terms for county committee members who would normally have been up for election in 2020.  It could prompt party leadership battles in the fall, without time to heal wounds.

The calendar

Complications of the political calendar is a critical consideration. Nothing favors incumbents and strong party organizations more than a tiny window of time between the approval of a map and the filing deadline.

One certainty is that New Jersey may need to begin planning now, since the first real deadline is less than four months away.

The last date to put a constitutional amendment on the ballot for the upcoming general election is August 3, 2020.  That might be an unavoidable necessity to avoid an extended court battle over legislative districts that could take longer than the census itself.

That’s not a simple process: moving a constitutional amendment forward this year would require 24 votes in the Senate and 48 in the Assembly.  Democrats could do this without bi-partisan support, but that that assumes every wing of the New Jersey Democratic Party would be on the same page.

While there is considerable flexibility with the date of the primary election, some legal experts believe that the State Constitution renders the general election date immovable.

Without legislative intervention, here are some of the deadlines in advance of the November 2, 2021 general election: ballots go to the printer on September 13 and county clerks begin mailing vote-by-mail ballots on September 18.

Both of those deadlines, impossible to achieve with a September primary, could be pushed by a couple of weeks.  That would depend upon how much Murphy and the legislature are willing to shorten the VBM seasons.

Here’s a hypothetical scenario, just to get the discussion going.

* The U.S. Census transmits certified population data to New Jersey on July 31, 2021.

* The Legislative Reapportionment Commission holds their public hearings in advance and begins meeting to draw maps on August 1, 2021.

* The State Constitution gives the commission one month to agree on a map before asking the Chief Justice to send in a tie-breaking 11th member, and another month after that.  Say there’s a hugely ambitious agreement from both parties – and perhaps the 11th member – to complete the map by August 8, 2021.

* Barring any legal challenges to the map and a judge granting an injunction to stop the clock, the filing of petitions could commence.  Imagine the filing deadline to be just five days after the final map is completed, an extraordinarily short and possibly unfair window for candidates to decide if they are running and for county party organizations to award their line – a process that is potentially endangered by the narrow calendar.  That would surely require many county organizations to prophylactically change their by-laws.

* An August 13, 2021 filing deadline might demand a shortened time period to challenge petitions, and surely would require buy-in from the judiciary to expedite any legal dispute.

* One necessity could be dual filing deadlines: one for governor, county and municipal office, state committee and county committee, and another for Senate and Assembly after the map is finished.  That might settle petition disputes for most of the offices early and lighten the load for election officials and judges.

* Let’s live in a sort of fantasyland just for a moment and say judges work 24-hour shifts through weekend – note to George Cohen: don’t take any days off — and all legal battles are completed by Monday morning, August 16.

* Another fantasyland scenario: candidates are certified to the county clerks on August 16, 2021 and ballot drawings are held later that day.  Let’s say the printers are on call, and vote-by-mail ballots are printed and mailed in three days, August 19, 2021.  That would shorten the primary election VBM period to just two weeks.

* The primary election is held on Tuesday, September 2, 2021 – the Tuesday before Labor Day.

* After the votes are counted and certified, with another streamlined judicial process for challenges, it will be a tough but possible lift to have New Jersey Election Day-ready by November 2.  Finding an extra week and holding the primary on September 9 might make that impossible.

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