IN THE SENATE OF THE UNITED STATES
June 25, 2019
Mr. Bennet introduced the following bill; which was read twice and referred to the Committee on the Judiciary
To create a more representative and accountable Congress by prohibiting partisan gerrymandering and ensuring that any redistricting of congressional district boundaries results in fair, effective, and accountable representation for all people.
This Act may be cited as the
Fair Maps Act of 2019.
Congress finds the following:
Democracy in the United States is rooted in the notion of actual representation and a rejection of the earlier British concept of virtual representation. In 1776, in Thoughts on Government, John Adams wrote that a legislative assembly “should be in miniature, an exact portrait of the people at large.”. Thomas Paine argued in Common Sense that a legislature should act “in the same manner as the whole body [of the people] would [act] were they present.”. At the Constitutional Convention, both Federalists and Anti-Federalists agreed. Federalist James Wilson declared, for example, that the new House of Representatives “ought to be the most exact transcript of the whole Society”, while his counterpart George Mason argued that the “requisites in actual representation are that the Reps. should sympathize with their constituents; shd. think as they think, & feel as they feel.”.
The Supreme Court made clear in Reynolds v. Sims, 377 U.S. 533 (1964), that the objective of redistricting is to achieve
fair and effective representation for all, that legislatures
should be bodies which are collectively responsive to the popular will, and that the Constitution
guarantees the opportunity for equal participation by all voters.
Partisan gerrymandering is incompatible with democratic principles at the foundation of the Republic. The drawing of electoral districts to benefit or disadvantage certain political parties denies people fair, effective, and accountable representation by allowing representatives to choose their voters rather than voters to choose their representatives.
In Davis v. Bandemer, 478 U.S. 109 (1986), the Supreme Court explained that it has “repeatedly stated that districting that would ‘operate to minimize or cancel out the voting strength of racial or political elements of the voting population’ would raise a constitutional question”.
The Constitution of the United States empowers Congress to ensure that congressional districting promotes fair, effective, and accountable representation for all people, as demonstrated in—
article I, section 2, clause 1, of the Constitution of the United States;
article I, section 4, clause 1, of the Constitution of the United States;
article I, section 5, clause 1, of the Constitution of the United States;
section 5 of the Fourteenth Amendment to the Constitution of the United States; and
section 2 of the Fifteenth Amendment to the Constitution of the United States.
In Vieth v. Jubelirer, 541 U.S. 267 (2004), the Supreme Court recognized that
the Framers provided a remedy for partisan gerrymandering
in the Constitution through the
power bestowed on Congress to regulate elections, and … to restrain the practice of political gerrymandering..
has not lain dormant, as Congress has repeatedly exercised its authority under article I, section 4 to regulate congressional districting criteria when Congress passed the Apportionment Act of 1842 (5 Stat. 491), the Apportionment Act of 1862 (12 Stat. 572), the Apportionment Act of 1872 (17 Stat. 28), the Apportionment Act of 1901 (31 Stat. 733), the Apportionment Act of 1911 (37 Stat. 13), the Apportionment Act of 1941 (55 Stat. 761), and the 1967 amendment to the Apportionment Act of 1929 (Public Law 90–196).
Following each Federal decennial census of population, each State with more than one congressional district shall establish or alter the boundaries of each congressional district of the State (referred to in this Act as a
districting plan) in accordance with each of the following criteria:
Districts shall comply with the United States Constitution, including the requirement that they equalize total population.
Districts shall comply with the Voting Rights Act of 1965 (52 U.S.C. 10301 et seq.).
Districts shall provide racial, ethnic, and language minorities with an equal opportunity to participate in the political process and to elect candidates of choice and shall not dilute or diminish their ability to elect candidates of choice whether alone or in coalition with others.
Districts shall respect communities of interest, neighborhoods, and political subdivisions to the extent practicable. A community of interest is defined as an area with recognized similarities of interests, including ethnic, racial, economic, social, cultural, geographic, or historic identities. Communities of interest may, in certain circumstances, include political subdivisions such as counties, municipalities, or school districts, but shall not include common relationships with political parties or political candidates.
Except to the extent necessary to comply with subsection (a)(2) and (3) and section 4, in establishing or altering the boundaries of any congressional district of a State, the State may not consider the following criteria:
The political party registration or affiliation of the residents of the State.
The voting history of the residents of the State.
The election results of the precincts of the State.
The place of residence of any incumbent, political candidate, or potential political candidate.
A State may consider other criteria, in addition to the required criteria under subsection (a), in establishing or altering the boundaries of its congressional districts, to the extent such other criteria do not conflict with the requirements of this section or result in a violation of section 4. The permissible criteria under this subsection may include any of the following:
Geographic contiguity and compactness.
Respect for counties, cities, and other political subdivisions.
Prohibition on partisan gerrymandering
A State shall not establish a districting plan that has the purpose or, except as necessary to comply with paragraphs (1) through (3) of section 3(a), will have the effect of unduly favoring or disfavoring any political party.
Enforcement and remedies
Right of action
Any eligible voter of a State may bring a civil action before a 3-judge court convened in accordance with section 2284 of title 28, United States Code, for a violation of section 3 or 4.
A court in a civil action under this subsection—
may issue an order—
invalidating the districting plan of such State on the grounds that the plan violates section 3 or 4; and
enjoining the use of that districting plan and requiring the State to develop a remedial districting plan that does not violate section 3 or 4 in accordance with subsection (b);
shall consider any violation of section 3 to be probative evidence that the districting plan has the purpose of unduly favoring or disfavoring a political party in contravention of section 4; and
in connection with an asserted claim of a violation of section 4, may consider, among other things, statistical evidence of the extent and durability of partisan bias, electoral responsiveness, and the ability of each party to translate votes into seat share.
Remedies related to prohibited partisan gerrymandering
In remedying a violation of section 4, a court shall apply the following:
If the court finds that the State has established a districting plan with the purpose of unduly favoring or disfavoring a political party, the court shall appoint a special master or panel of special masters to develop a remedial districting plan, which shall be approved by the court before taking effect.
If the court finds that the State has established a districting plan that will have the effect, but does not have the purpose, of unduly favoring or disfavoring a political party, the court may, in its discretion—
appoint a special master or panel of special masters to develop a remedial districting plan, which shall be approved by the court before taking effect; or
allow the State the opportunity to develop a remedial districting plan, which shall be approved by the court before taking effect.
Adoption of remedial maps
Any remedial districting plan shall comply with the requirements of section 3 and 4 and shall not become effective until approved by the court after an evidentiary hearing at which members of the public may appear and present evidence, including expert testimony with respect to the compliance of the remedial plan with all of the provisions of the Act.
Remedy pending appeal
Notwithstanding the pendency of any appeal of an order finding a violation of section 3 or 4, no stay shall be issued which shall bar the development and adoption of a remedial districting plan, whether developed by the State or by the special master or panel of special masters (as the case may be), pending such appeal.
In the event that an upcoming Federal election requires an interim districting plan to be used in such election, nothing shall be construed to limit the authority of the court to modify such interim districting plan in the future or shall be interpreted as limiting the right of citizens of the State to obtain other or further relief in connection with the State’s enacted plan. The agreement of a State to interim relief or the adoption by a State of an alternative plan shall not—
moot or invalidate a finding that a districting plan is the result of intentional discrimination against voters on the basis of race, ethnicity, or partisan affiliation; or
impair the right of voters to seek other relief under applicable law for such discriminatory action, including under section 3(c) of the Voting Rights Act of 1965 (52 U.S.C. 10302(c)).
No person, legislature, or State may claim legislative privilege under either State or Federal law in a civil action brought under this section or in any other legal challenge, under either State or Federal law, to a districting plan.
With respect to any claim under section 4, a State’s enacted congressional districting plan shall have a rebuttable presumption of validity if that plan was created by a nonpartisan or bipartisan redistricting commission, where support from members of more than one political party and, if applicable, nonaffiliated members, is required to approve a districting plan.
Transparency and reporting
Each State shall provide public access, in an easily useable format, to the demographic data and shape files used by the State to develop and analyze proposed districting plans.
Prior to considering a congressional districting plan, the mapdrawing authority of a State shall hold one or more public hearings on such plan after giving notice of not less than 10 days, including on a website maintained by the State, of the mapdrawing authority's intent to hold such hearings. The mapdrawing authority of a State shall accept comments on all congressional districting plans so noticed as well as alternative map proposals covering all or part of a State and make all such comments and alternative map proposals publicly available on a website maintained by the State.
Any proposed congressional districting plan to be voted on by the mapdrawing authority of a State shall be accompanied by a written report, made available to the public not less than 72 hours before any initial vote, describing how the proposed plan satisfies the requirements of section 3 and 4, including an evaluation of the districting plan under multiple accepted measures of partisan fairness.
Prohibition on mid-decade districting
A State that has an approved remedial districting plan in accordance with section 5 may not be redistricted again until after the next apportionment of Representatives under section 22(a) of the Act entitled “An Act to provide for the fifteenth and subsequent decennial censuses and to provide for an apportionment of Representatives in Congress”, approved June 18, 1929 (2 U.S.C. 2a), unless a court requires the State to conduct such subsequent redistricting to comply with the Constitution of the United States, the Voting Rights Act of 1965 (52 U.S.C. 10301 et seq.), the Constitution of the State, or the terms or conditions of this Act.
Nothing in this Act shall be construed to preempt any cause of action under State law, or limit or abrogate any cause of action under Federal law.
Voting Rights Act
Nothing in this Act shall be construed to preempt or alter any provision of the Voting Rights Act of 1965 (52 U.S.C. 10301 et seq.).
If any provision of this Act or the application of such provision to any person or circumstance is held to be unconstitutional, the remainder of this Act and the application of the provision to any other person or circumstance shall not be affected.