5412 Federal Register / Vol. 66, No. 12 / Thursday, January 18, 2001 / Notices

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.

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:

• The scope of Section 5 review;

• The Section 5 ‘‘benchmark’’;

• how the benchmark plan is

compared with the proposed plan;

• The considerations leading to the

decision to interpose a Section 5

retrogression objection;

• racially discriminatory purpose

under Section 5; and

• 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 oneperson 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

Federal Register / Vol. 66, No. 12 / Thursday, January 18, 2001 / Notices 5413

1For 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.

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.

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 lessretrogressive 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 lessretrogressive 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 nonretrogressive 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

5414 Federal Register / Vol. 66, No. 12 / Thursday, January 18, 2001 / Notices

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 § 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 minority race is listed) ............................................................... 2,330 ( 0.4%)

Hispanic .............................................................................................................................................................................. 12,727 ( 1.9%)

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/AfricanAmerican), 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]

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