Fair Maps Act of 2019

II 116TH CONGRESS 1ST SESSION S. 1972 To create a more representative and accountable Congress by prohibiting partisan gerrymandering and ensuring that any redistricting of congres- sional district boundaries results in fair, effective, and accountable rep- resentation for all people. 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 A BILL 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. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Fair Maps Act of 4 2019’’. 5 SEC. 2. FINDINGS. 6 Congress finds the following: 7 VerDate Sep 11 2014 04:45 Jun 28, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1972.IS S1972 kjohnson on DSK79L0C42 with BILLS 2 •S 1972 IS (1) Democracy in the United States is rooted in 1 the notion of actual representation and a rejection of 2 the earlier British concept of virtual representation. 3 In 1776, in Thoughts on Government, John Adams 4 wrote that a legislative assembly ‘‘should be in mini- 5 ature, an exact portrait of the people at large.’’. 6 Thomas Paine argued in Common Sense that a leg- 7 islature should act ‘‘in the same manner as the 8 whole body [of the people] would [act] were they 9 present.’’. At the Constitutional Convention, both 10 Federalists and Anti-Federalists agreed. Federalist 11 James Wilson declared, for example, that the new 12 House of Representatives ‘‘ought to be the most 13 exact transcript of the whole Society’’, while his 14 counterpart George Mason argued that the ‘‘req- 15 uisites in actual representation are that the Reps. 16 should sympathize with their constituents; shd. think 17 as they think, & feel as they feel.’’. 18 (2) The Supreme Court made clear in Reynolds 19 v. Sims, 377 U.S. 533 (1964), that the objective of 20 redistricting is to achieve ‘‘fair and effective rep- 21 resentation for all’’, that legislatures ‘‘should be bod- 22 ies which are collectively responsive to the popular 23 will’’, and that the Constitution ‘‘guarantees the op- 24 portunity for equal participation by all voters’’. 25 VerDate Sep 11 2014 04:45 Jun 28, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1972.IS S1972 kjohnson on DSK79L0C42 with BILLS 3 •S 1972 IS (3) Partisan gerrymandering is incompatible 1 with democratic principles at the foundation of the 2 Republic. The drawing of electoral districts to ben- 3 efit or disadvantage certain political parties denies 4 people fair, effective, and accountable representation 5 by allowing representatives to choose their voters 6 rather than voters to choose their representatives. 7 (4) In Davis v. Bandemer, 478 U.S. 109 8 (1986), the Supreme Court explained that it has 9 ‘‘repeatedly stated that districting that would ‘oper- 10 ate to minimize or cancel out the voting strength of 11 racial or political elements of the voting population’ 12 would raise a constitutional question’’. 13 (5) The Constitution of the United States em- 14 powers Congress to ensure that congressional dis- 15 tricting promotes fair, effective, and accountable 16 representation for all people, as demonstrated in— 17 (A) article I, section 2, clause 1, of the 18 Constitution of the United States; 19 (B) article I, section 4, clause 1, of the 20 Constitution of the United States; 21 (C) article I, section 5, clause 1, of the 22 Constitution of the United States; 23 VerDate Sep 11 2014 04:45 Jun 28, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1972.IS S1972 kjohnson on DSK79L0C42 with BILLS 4 •S 1972 IS (D) section 5 of the Fourteenth Amend- 1 ment to the Constitution of the United States; 2 and 3 (E) section 2 of the Fifteenth Amendment 4 to the Constitution of the United States. 5 (6) In Vieth v. Jubelirer, 541 U.S. 267 (2004), 6 the Supreme Court recognized that ‘‘the Framers 7 provided a remedy’’ for partisan gerrymandering ‘‘in 8 the Constitution’’ through the ‘‘power bestowed on 9 Congress to regulate elections, and . . . to restrain 10 the practice of political gerrymandering.’’. 11 (7) This power ‘‘has not lain dormant,’’ as Con- 12 gress has repeatedly exercised its authority under 13 article I, section 4 to regulate congressional dis- 14 tricting criteria when Congress passed the Appor- 15 tionment Act of 1842 (5 Stat. 491), the Apportion- 16 ment Act of 1862 (12 Stat. 572), the Apportionment 17 Act of 1872 (17 Stat. 28), the Apportionment Act 18 of 1901 (31 Stat. 733), the Apportionment Act of 19 1911 (37 Stat. 13), the Apportionment Act of 1941 20 (55 Stat. 761), and the 1967 amendment to the Ap- 21 portionment Act of 1929 (Public Law 90–196). 22 SEC. 3. DISTRICTING CRITERIA. 23 (a) REQUIRED CRITERIA.—Following each Federal 24 decennial census of population, each State with more than 25 VerDate Sep 11 2014 04:45 Jun 28, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1972.IS S1972 kjohnson on DSK79L0C42 with BILLS 5 •S 1972 IS one congressional district shall establish or alter the 1 boundaries of each congressional district of the State (re- 2 ferred to in this Act as a ‘‘districting plan’’) in accordance 3 with each of the following criteria: 4 (1) Districts shall comply with the United 5 States Constitution, including the requirement that 6 they equalize total population. 7 (2) Districts shall comply with the Voting 8 Rights Act of 1965 (52 U.S.C. 10301 et seq.). 9 (3) Districts shall provide racial, ethnic, and 10 language minorities with an equal opportunity to 11 participate in the political process and to elect can- 12 didates of choice and shall not dilute or diminish 13 their ability to elect candidates of choice whether 14 alone or in coalition with others. 15 (4) Districts shall respect communities of inter- 16 est, neighborhoods, and political subdivisions to the 17 extent practicable. A community of interest is de- 18 fined as an area with recognized similarities of inter- 19 ests, including ethnic, racial, economic, social, cul- 20 tural, geographic, or historic identities. Communities 21 of interest may, in certain circumstances, include po- 22 litical subdivisions such as counties, municipalities, 23 or school districts, but shall not include common re- 24 VerDate Sep 11 2014 04:45 Jun 28, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1972.IS S1972 kjohnson on DSK79L0C42 with BILLS 6 •S 1972 IS lationships with political parties or political can- 1 didates. 2 (b) PROHIBITED CRITERIA.—Except to the extent 3 necessary to comply with subsection (a)(2) and (3) and 4 section 4, in establishing or altering the boundaries of any 5 congressional district of a State, the State may not con- 6 sider the following criteria: 7 (1) The political party registration or affiliation 8 of the residents of the State. 9 (2) The voting history of the residents of the 10 State. 11 (3) The election results of the precincts of the 12 State. 13 (4) The place of residence of any incumbent, 14 political candidate, or potential political candidate. 15 (c) PERMISSIBLE CRITERIA.—A State may consider 16 other criteria, in addition to the required criteria under 17 subsection (a), in establishing or altering the boundaries 18 of its congressional districts, to the extent such other cri- 19 teria do not conflict with the requirements of this section 20 or result in a violation of section 4. The permissible cri- 21 teria under this subsection may include any of the fol- 22 lowing: 23 (1) Geographic contiguity and compactness. 24 VerDate Sep 11 2014 04:45 Jun 28, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1972.IS S1972 kjohnson on DSK79L0C42 with BILLS 7 •S 1972 IS (2) Respect for counties, cities, and other polit- 1 ical subdivisions. 2 SEC. 4. PROHIBITION ON PARTISAN GERRYMANDERING. 3 A State shall not establish a districting plan that has 4 the purpose or, except as necessary to comply with para- 5 graphs (1) through (3) of section 3(a), will have the effect 6 of unduly favoring or disfavoring any political party. 7 SEC. 5. ENFORCEMENT AND REMEDIES. 8 (a) RIGHT OF ACTION.— 9 (1) IN GENERAL.—Any eligible voter of a State 10 may bring a civil action before a 3-judge court con- 11 vened in accordance with section 2284 of title 28, 12 United States Code, for a violation of section 3 or 13 4. 14 (2) COURT ORDER.—A court in a civil action 15 under this subsection— 16 (A) may issue an order— 17 (i) invalidating the districting plan of 18 such State on the grounds that the plan 19 violates section 3 or 4; and 20 (ii) enjoining the use of that dis- 21 tricting plan and requiring the State to de- 22 velop a remedial districting plan that does 23 not violate section 3 or 4 in accordance 24 with subsection (b); 25 VerDate Sep 11 2014 04:45 Jun 28, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1972.IS S1972 kjohnson on DSK79L0C42 with BILLS 8 •S 1972 IS (B) shall consider any violation of section 1 3 to be probative evidence that the districting 2 plan has the purpose of unduly favoring or 3 disfavoring a political party in contravention of 4 section 4; and 5 (C) in connection with an asserted claim of 6 a violation of section 4, may consider, among 7 other things, statistical evidence of the extent 8 and durability of partisan bias, electoral respon- 9 siveness, and the ability of each party to trans- 10 late votes into seat share. 11 (b) REMEDIES RELATED TO PROHIBITED PARTISAN 12 GERRYMANDERING.—In remedying a violation of section 13 4, a court shall apply the following: 14 (1) If the court finds that the State has estab- 15 lished a districting plan with the purpose of unduly 16 favoring or disfavoring a political party, the court 17 shall appoint a special master or panel of special 18 masters to develop a remedial districting plan, which 19 shall be approved by the court before taking effect. 20 (2) If the court finds that the State has estab- 21 lished a districting plan that will have the effect, but 22 does not have the purpose, of unduly favoring or 23 disfavoring a political party, the court may, in its 24 discretion— 25 VerDate Sep 11 2014 04:45 Jun 28, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1972.IS S1972 kjohnson on DSK79L0C42 with BILLS 9 •S 1972 IS (A) appoint a special master or panel of 1 special masters to develop a remedial districting 2 plan, which shall be approved by the court be- 3 fore taking effect; or 4 (B) allow the State the opportunity to de- 5 velop a remedial districting plan, which shall be 6 approved by the court before taking effect. 7 (c) ADOPTION OF REMEDIAL MAPS.—Any remedial 8 districting plan shall comply with the requirements of sec- 9 tion 3 and 4 and shall not become effective until approved 10 by the court after an evidentiary hearing at which mem- 11 bers of the public may appear and present evidence, in- 12 cluding expert testimony with respect to the compliance 13 of the remedial plan with all of the provisions of the Act. 14 (d) REMEDY PENDING APPEAL.—Notwithstanding 15 the pendency of any appeal of an order finding a violation 16 of section 3 or 4, no stay shall be issued which shall bar 17 the development and adoption of a remedial districting 18 plan, whether developed by the State or by the special 19 master or panel of special masters (as the case may be), 20 pending such appeal. 21 (e) INTERIM PLAN.—In the event that an upcoming 22 Federal election requires an interim districting plan to be 23 used in such election, nothing shall be construed to limit 24 the authority of the court to modify such interim dis- 25 VerDate Sep 11 2014 04:45 Jun 28, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1972.IS S1972 kjohnson on DSK79L0C42 with BILLS 10 •S 1972 IS tricting plan in the future or shall be interpreted as lim- 1 iting the right of citizens of the State to obtain other or 2 further relief in connection with the State’s enacted plan. 3 The agreement of a State to interim relief or the adoption 4 by a State of an alternative plan shall not— 5 (1) moot or invalidate a finding that a dis- 6 tricting plan is the result of intentional discrimina- 7 tion against voters on the basis of race, ethnicity, or 8 partisan affiliation; or 9 (2) impair the right of voters to seek other re- 10 lief under applicable law for such discriminatory ac- 11 tion, including under section 3(c) of the Voting 12 Rights Act of 1965 (52 U.S.C. 10302(c)). 13 (f) LEGISLATIVE PRIVILEGE.—No person, legisla- 14 ture, or State may claim legislative privilege under either 15 State or Federal law in a civil action brought under this 16 section or in any other legal challenge, under either State 17 or Federal law, to a districting plan. 18 SEC. 6. SAFE HARBOR. 19 With respect to any claim under section 4, a State’s 20 enacted congressional districting plan shall have a rebutta- 21 ble presumption of validity if that plan was created by a 22 nonpartisan or bipartisan redistricting commission, where 23 support from members of more than one political party 24 VerDate Sep 11 2014 04:45 Jun 28, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1972.IS S1972 kjohnson on DSK79L0C42 with BILLS 11 •S 1972 IS and, if applicable, nonaffiliated members, is required to 1 approve a districting plan. 2 SEC. 7. TRANSPARENCY AND REPORTING. 3 (a) DATA.—Each State shall provide public access, 4 in an easily useable format, to the demographic data and 5 shape files used by the State to develop and analyze pro- 6 posed districting plans. 7 (b) NOTICE.—Prior to considering a congressional 8 districting plan, the mapdrawing authority of a State shall 9 hold one or more public hearings on such plan after giving 10 notice of not less than 10 days, including on a website 11 maintained by the State, of the mapdrawing authority’s 12 intent to hold such hearings. The mapdrawing authority 13 of a State shall accept comments on all congressional dis- 14 tricting plans so noticed as well as alternative map pro- 15 posals covering all or part of a State and make all such 16 comments and alternative map proposals publicly available 17 on a website maintained by the State. 18 (c) REPORT.—Any proposed congressional districting 19 plan to be voted on by the mapdrawing authority of a 20 State shall be accompanied by a written report, made 21 available to the public not less than 72 hours before any 22 initial vote, describing how the proposed plan satisfies the 23 requi [Text truncated for display. Full text available on Congress.gov.]