[Federal Register Volume 66, Number 12 (Thursday, January 18, 2001)]
[Notices]
[Pages 5412-5414]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-1488]



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Part XV





Department of Justice





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Guidance Concerning Redistricting and Retrogression Under Section 5 of 
the Voting Rights Act, 42 U.S.C. 1973c; Notice

Federal Register / Vol. 66, No. 12 / Thursday, January 18, 2001 / 
Notices

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DEPARTMENT OF JUSTICE


Office of the Assistant Attorney General, Civil Rights Division; 
Guidance Concerning Redistricting and Retrogression Under Section 5 of 
the Voting Rights Act, 42 U.S.C. 1973c

AGENCY: Department of Justice.

ACTION: Notice.

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SUMMARY: The Attorney General has delegated responsibility and 
authority for determinations under Section 5 of the Voting Rights Act 
to the Assistant Attorney General, Civil Rights Division, who finds 
that, in view of recent judicial decisions, it is appropriate to issue 
guidance concerning the review of redistricting plans submitted to the 
Attorney General for preclearance pursuant to Section 5 of the Voting 
Rights Act.

FOR FURTHER INFORMATION CONTACT: Joseph D. Rich, Acting Chief, Voting 
Section, Civil Rights Division, United States Department of Justice, 
Washington, D.C. 20530, (202) 514-6018.

SUPPLEMENTARY INFORMATION: Section 5 of the Voting Rights Act of 1965, 
42 U.S.C. 1973c, requires jurisdictions covered by the Act's special 
provisions to obtain a determination from either the Attorney General 
or the United States District Court for the District of Columbia that 
any change affecting voting, which they seek to enforce, does not have 
a discriminatory purpose and will not have a discriminatory effect.
    Beginning in April 2001, these jurisdictions will begin to seek 
preclearance of redistricting plans based on the 2000 Census. Based on 
past experience, the overwhelming majority of the covered jurisdiction 
will submit their redistricting plan to the Attorney General. As part 
of the Department's preparation for the upcoming redistricting cycle, 
Departmental representatives conducted a nation-wide outreach campaign 
to inform as many of the interested parties as possible of the manner 
in which it will analyze redistricting plans under section 5. Many of 
the contacts, both governmental entities and interested private 
citizens and groups, expressed the view that, in view of recent 
judicial decisions, it would be helpful for the Department to issue 
some general guidance in this area. These requests coincided with the 
Attorney General's view that, by identifying, in general terms, the 
Department's analytical approach, such guidance would serve a useful 
law enforcement purpose. This guidance is not legally binding; rather, 
it is intended only to provide assistance to entities and persons 
affected by the preclearance requirements of section 5. Approved OMB 
No. 1190-001 (expires December 31, 2001).

Guidance Concerning Redistricting and Retrogression Under Section 5 
of the Voting Rights Act, as Amended, 42 U.S.C. 1973c

    Following release of the 2000 Census data, the Department of 
Justice expects to receive several thousand submissions of 
redistricting plans pursuant to the preclearance provisions in Section 
5 of the Voting Rights Act, 42 U.S.C. 1973c. The Civil Rights Division 
has received numerous requests for guidance concerning the procedures 
and standards that will be applied during review of these redistricting 
plans. Many of the requests relate to the role of the 2000 Census data 
in the Section 5 review process and to the Supreme Court's decisions in 
Shaw v. Reno, 509 U.S. 630 (1993), and later related cases.
    The ``Procedures for the Administration of Section 5 of the Voting 
Rights Act,'' 28 CFR Part 51, provide detailed information about the 
Section 5 review process. Copies of these Procedures are available upon 
request and through the Voting Section Web Site (http://www.usdoj.gov/crt/voting). This document is meant to provide additional guidance with 
regard to current issues of interest. Citations to judicial decisions 
are provided to assist the reader but are not intended to be 
comprehensive. The following discussion provides supplemental guidance 
concerning the following topics:
    <bullet> The scope of Section 5 review;
    <bullet> The Section 5 ``benchmark'';
    <bullet> how the benchmark plan is compared with the proposed plan;
    <bullet> The considerations leading to the decision to interpose a 
Section 5 retrogression objection;
    <bullet> racially discriminatory purpose under Section 5; and
    <bullet> The use of 2000 Census data and other information during 
Section 5 review.

The Scope of Section 5

    The Supreme Court has held that under Section 5, a covered 
jurisdiction has the burden of establishing that a proposed 
redistricting plan does not have the purpose or effect of worsening the 
position of minority voters when compared to that jurisdiction's 
``benchmark'' plan. Reno v. Bossier Parish School Board, 120 S. Ct. 
866, 871-72 (2000). If the jurisdiction fails to show the absence of 
such purpose or effect, then Section 5 preclearance will be denied by 
the Department of Justice or the District Court for the District of 
Columbia.
    The decision in the Bossier Parish School Board case addressed the 
scope of Section 5 review. Redistricting plans that are not 
retrogressive in purpose or effect must be precleared, even if they 
violate other provisions of the Voting Rights Act or the Constitution. 
The Department of Justice may not deny Section 5 preclearance on the 
grounds that a redistricting plan violates the one-person one-vote 
principle, on the grounds that it violates Shaw v. Reno, or on the 
grounds that it violates Section 2 of the Voting Rights Act. Therefore, 
jurisdictions should not regard Section 5 preclearance of a 
redistricting plan as preventing subsequent legal challenges to that 
plan by the Department of Justice. In addition, private plaintiffs may 
initiate litigation, claiming either constitutional or statutory 
violations.

Benchmark Plans

    The last legally enforceable redistricting plan in force for a 
Section 5 covered jurisdiction is the ``benchmark'' against which a new 
plan is compared. See 28 CFR 51.54(b)(1). Generally, the most recent 
plan to have received Section 5 preclearance (or have been drawn by a 
federal court) is the last legally enforceable redistricting plan for 
Section 5 purposes. When a jurisdiction has received Section 5 
preclearance for a new redistricting plan, or a federal court has drawn 
a new plan and ordered it into effect, that plan replaces the last 
legally enforceable plan as the Section 5 benchmark. See McDaniel v. 
Sanchez, 452 U.S. 130 (1981); Texas v. United States, 785 F. Supp. 201 
(D.D.C. 1992); Mississippi v. Smith, 541 F. Supp. 1329, 1333 (D.D.C. 
1982), appeal dismissed, 461 U.S. 912 (1983).
    In Abrams v. Johnson, 521 U.S. 74 (1997), the Supreme Court held 
that a redistricting plan found to be unconstitutional under the 
principles of Shaw v. Reno and its progeny could not serve as the 
Section 5 benchmark. Therefore, a redistricting plan drawn to replace a 
plan found by a federal court to violate Shaw v. Reno will be compared 
with the last legally enforceable plan predating the unconstitutional 
plan. Absent such a finding of unconstitutionality under Shaw by a 
federal court, the last legally enforceable plan will serve as the 
benchmark for Section 5 review. Therefore, a jurisdiction is not 
required to address the constitutionality of its benchmark plan when 
submitting a redistricting plan and the question of whether the 
benchmark plan is constitutional will not be considered

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during the Department's Section 5 review.

Comparison of Plans

    When the Department of Justice receives a Section 5 redistricting 
submission, several basic steps are taken to ensure a complete review. 
After the ``benchmark'' districting plan is identified, the staff 
inputs the boundaries of the benchmark and proposed plans into the 
Civil Rights Division's geographic information system. Then, using the 
most recent decennial census data, population data are calculated for 
each of the districts in the benchmark and proposed plans.
    Division staff then analyzes the proposed plan to determine whether 
it will reduce minority voting strength when compared to the benchmark 
plan, considering all of the relevant, available information. Although 
comparison of the census population of districts in the benchmark and 
proposed plans is the important starting point of any retrogression 
analysis, our review and analysis will be greatly facilitated by 
inclusion of additional demographic and election data in the 
submission. See 28 CFR 51.28(a). For example, census population data 
may not reflect significant differences in group voting behavior.\1\ 
Therefore, election history and voting patterns within the 
jurisdiction, voter registration and turnout information, and other 
similar information are very important to an assessment of the actual 
effect of a redistricting plan. This information is used to compare 
minority voting strength in the benchmark plan as a whole with minority 
voting strength in the proposed plan as a whole.
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    \1\ For example, within a particular jurisdiction there may be 
large differences between the rates of turnout among minority 
populations in different areas. Thus, a redistricting plan may 
result in a significant, objectionable reduction of effective 
minority voting strength if it changes district boundaries to 
substitute poorly-participating minority populations (for example, 
migrant worker housing or institutional populations) for active 
minority voters, even though the minority percentages for the 
benchmark and proposed plans are similar when measured by Census 
population data.
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    The Section 5 Procedures identify a number of factors that are 
considered in deciding whether or not a redistricting plan has a 
retrogressive purpose or effect. These factors include whether minority 
voting strength is reduced by the proposed redistricting; whether 
minority concentrations are fragmented among different districts; 
whether minorities are overconcentrated in one or more districts; 
whether available alternative plans satisfying the jurisdiction's 
legitimate governmental interests were considered; whether the proposed 
plan departs from objective redistricting criteria set by the 
submitting jurisdiction, ignores other relevant factors such as 
compactness and contiguity, or displays a configuration that 
inexplicably disregards available natural or artificial boundaries; 
and, whether the plan is inconsistent with the jurisdiction's stated 
redistricting standards. See 28 CFR 51.59; see also 28 CFR 51.56-51.58.
    A proposed plan is retrogressive under the Section 5 ``effect'' 
prong if its net effect would be to reduce minority voters'' 
``effective exercise of the electoral franchise'' when compared to the 
benchmark plan. See Beer v. United States, 425 U.S. 130, 141 (1976). 
The effective exercise of the electoral franchise usually is assessed 
in redistricting submissions in terms of the opportunity for minority 
voters to elect candidates of their choice. The presence of racially 
polarized voting is an important factor considered by the Department of 
Justice in assessing minority voting strength. A proposed redistricting 
plan ordinarily will occasion an objection by the Department of Justice 
if the plan reduces minority voting strength relative to the benchmark 
plan and a fairly-drawn alternative plan could ameliorate or prevent 
that retrogression.

Alternatives to Retrogressive Plans

    If a retrogressive redistricting plan is submitted, the 
jurisdiction seeking preclearance of such a plan bears the burden of 
demonstrating that a less-retrogressive plan cannot reasonably be 
drawn. In analyzing this issue, the Department takes into account 
constitutional principles as discussed below, the residential 
segregation and distribution of the minority population within the 
jurisdiction, demographic changes since the previous redistricting, the 
physical geography of the jurisdiction, the jurisdiction's historical 
redistricting practices, political boundaries such as cities and 
counties, and state redistricting requirements.
    In considering whether less-retrogressive alternative plans are 
available, the Department of Justice looks to plans that were actually 
considered or drawn by the submitting jurisdiction, as well as 
alternative plans presented or made known to the submitting 
jurisdiction by interested citizens or others. In addition, the 
Department may develop illustrative alternative plans for use in its 
analysis, taking into consideration the jurisdiction's redistricting 
principles. If it is determined that a reasonable alternative plan 
exists that is non-retrogressive or less retrogressive than the 
submitted plan, the Department will interpose an objection.
    Preventing retrogression under Section 5 does not require 
jurisdictions to violate the one-person one-vote principle. See 52 FR 
488 (Jan. 6, 1987). Similarly, preventing retrogression under Section 5 
does not require jurisdictions to violate Shaw v. Reno and related 
cases.
    The one-person one-vote issue arises most commonly where 
substantial demographic changes have occurred in some, but not all, 
parts of a jurisdiction. Generally, a plan for congressional 
redistricting that would require a greater overall population deviation 
than the submitted plan is not considered a reasonable alternative by 
the Department. For state legislative and local redistricting, a plan 
that would require overall population deviations greater than 10 
percent is not considered a reasonable alternative.
    In assessing whether a less retrogressive alternative plan can 
reasonably be drawn, the geographic compactness of a jurisdiction's 
minority population will be a factor in the Department's analysis. This 
analysis will include a review of the submitting jurisdiction's 
historical redistricting practices and district configurations to 
determine whether the alternative plan would (a) abandon those 
practices and (b) require highly unusual features to link together 
widely separated minority concentrations.
    At the same time, compliance with Section 5 of the Voting Rights 
Act may require the jurisdiction to depart from strict adherence to 
certain of its redistricting criteria. For example, criteria which 
require the jurisdiction to make the least change to existing district 
boundaries, follow county, city, or precinct boundaries, protect 
incumbents, preserve partisan balance, or in some cases, require a 
certain level of compactness of district boundaries may need to give 
way to some degree to avoid retrogression. In evaluating alternative 
plans, the Department of Justice relies upon plans that make the least 
departure from a jurisdiction's stated redistricting criteria needed to 
prevent retrogression.

Prohibited Purpose

    In those instances in which a plan is found to have a retrogressive 
effect, as well as in those cases in which a proposed plan is alleged 
to have a retrogressive effect but a functional analysis does not yield 
clear conclusions about the plan's effect, the Department of Justice 
will closely examine the process by which the plan

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was adopted to ascertain whether the plan was intended to reduce 
minority voting strength. This examination may include consideration of 
whether there is a purpose to retrogress in the future even though 
there is no retrogression at the time of the submission. If the 
jurisdiction has not provided sufficient evidence to demonstrate that 
the plan was not intended to reduce minority voting strength, either 
now or in the future, the proposed redistricting plan is subject to a 
Section 5 objection.

The 2000 Census

    The most current population data are used to measure both the 
benchmark plan and the proposed redistricting plan. See 28 CFR 
51.54(b)(2) (Department of Justice considers ``the conditions existing 
at the time of the submission.''); City of Rome v. United States, 446 
U.S. 156, 186 (1980) (''most current available population data'' to be 
used for measuring effect of annexations); Reno v. Bossier Parish 
School Board, 120 S. Ct. at 874 (``In Sec. 5 preclearance proceedings * 
* * the baseline is the status quo that is proposed to be changed: If 
the change `abridges the right to vote' relative to the status quo, 
preclearance is denied * * *'').
    For redistricting after the 2000 Census, the Department of Justice 
will, consistent with past practice, evaluate redistricting submissions 
using the 2000 Census population data released by the Bureau of the 
Census for redistricting pursuant to Public Law 94-171, 13 U.S.C. 
141(c). Thus, our analysis of the effect of proposed redistricting 
plans includes a review and assessment of the Public Law 94-171 
population data, even if those data are not included in the submission 
or were not used by the jurisdiction in drawing the plan. The failure 
to use the Public Law 94-171 population data in redistricting does not, 
by itself, constitute a reason for denial of preclearance. However, 
unless other population data can be shown to be more accurate and 
reliable than the Public Law 94-171 data, the Department of Justice 
will consider the Public Law 94-171 data to measure the total 
population and voting age population within a jurisdiction for purposes 
of its Section 5 analysis.
    The 2000 Census Public Law 94-171 data for the first time will 
include counts of persons who have identified themselves as members of 
more than one racial category. This decision reflects the October 30, 
1997 decision by the Office of Management and Budget [OMB] to 
incorporate multiple-race reporting into the federal statistical 
system. See 62 FR 58782-58790. On March 9, 2000, OMB issued Bulletin 
No. 00-02 addressing ``Guidance on Aggregation and Allocation of Data 
on Race for Use in Civil Rights Enforcement.'' Part II of that Bulletin 
describes how such responses will be allocated for use in civil rights 
monitoring and enforcement.
    For voting rights enforcement purposes, the Department of Justice 
will be guided by Part II of the Bulletin in its use of Census data. 
The following is an example, based on the data from the 1998 Dress 
Rehearsal Census in Columbia, South Carolina, of how such data will be 
allocated by the Department when analyzing redistricting submissions.

Total population...............................                  662,140
Non-Hispanic...................................         649,413  (98.1%)
    White......................................         374,291  (56.5%)
    Black or African American..................         262,384  (39.6%)
    Asian......................................           6,161  ( 0.9%)
    American Indian/Alaska Native..............           2,995  ( 0.5%)
    Native Hawaiian or Other Pacific Uslander..             375  ( 0.0%)
    Some other race............................             882  ( 0.1%)
    Other Multiple-Race (where more than one              2,330  ( 0.4%)
     minority race is listed)..................
Hispanic.......................................          12,727  ( 1.9%)
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    Pursuant to Part II of OMB Bulletin 00-02, any multiple-race 
response that included white and one of the five other race categories 
was allocated to the minority race listed in the response. Thus, the 
numbers above for Black/African American, Asian, American Indian/Alaska 
Native, Native Hawaiian or Other Pacific Islander and Some other race 
reflect the total of the single race responses and the multiple-race 
responses in which the minority race and white race were listed. For 
example, for the Black/African American category, there were 261,142 
single race responses and 1,242 multiple-race responses in which the 
races listed were White and Black/African American. This adds up to the 
total calculated above of 262,384.
    The Other Multiple-Race category is comprised of all multiple-race 
responses where there is more than one minority race listed. The number 
above (2,330) reflects the total number of responses of forty two such 
categories in the Columbia data where at least one response was 
indicated. In our analysis, we will examine this multiple-race data and 
if it appears that any one of these categories has significant numbers 
of responses (for example, if the Black/African American and American 
Indian/Alaska Native category, alone, indicates a significant number of 
responses), those responses will be allocated alternatively to each of 
the component single-race categories for analysis, as indicated in Part 
II of the OMB Bulletin. It is important to note that current research 
indicates that multiple-race responses are expected to be small. This 
is especially true with respect to multiple-race categories with two or 
more minority races. For example, in the Columbia data, the largest 
such groups are only 0.1 percent (American Indian/Alaska Native and 
Black/African/American; and Asian and Black/African American). In light 
of this, the impact of such multiple-race responses on the Department 
of Justice's analysis of census data pursuant to its responsibilities 
under the Voting Rights Act is expected to be minimal.
    As in the past, the Department will analyze Hispanic voters as a 
separate group for purposes of enforcement of the Voting Rights Act. If 
there are significant numbers of responses which report Hispanics and 
one or more minority races (for example, Hispanics who list their race 
as Black/African-American), those responses will be allocated 
alternatively to the Hispanic category and the minority race category.

    Dated: January 11, 2001.
Bill Lann Lee,
Assistant Attorney General, Civil Rights Division.
[FR Doc. 01-1488 Filed 1-17-01; 8:45 am]
BILLING CODE 4410-13-P