Title: Fair Maps Act of 2018
Policy area: Government Operations and Politics

Summary:
Fair Maps Act of 2018
This bill prohibits a state from establishing a congressional districting plan that unduly favors or disfavors a political party. Any eligible voter from the state may sue to invalidate such a districting plan.
The bill also establishes certain required and permissible criteria for states to consider when establishing or altering congressional district boundaries, as well as criteria that states are prohibited from considering when devising districting plans.

[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 3123 Introduced in Senate (IS)]

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115th CONGRESS
  2d Session
                                S. 3123

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.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 25, 2018

  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 Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Fair Maps Act of 2018''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) 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.''.
            (2) 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''.
            (3) 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.
            (4) 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''.
            (5) 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--
                    (A) article I, section 2, clause 1, of the 
                Constitution of the United States;
                    (B) article I, section 4, clause 1, of the 
                Constitution of the United States;
                    (C) article I, section 5, clause 1, of the 
                Constitution of the United States;
                    (D) section 5 of the Fourteenth Amendment to the 
                Constitution of the United States; and
                    (E) section 2 of the Fifteenth Amendment to the 
                Constitution of the United States.
            (6) 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.''.
            (7) This power ``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).

SEC. 3. DISTRICTING CRITERIA.

    (a) Required Criteria.--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 in accordance with each of the following criteria:
            (1) Compliance with the Constitution of the United States, 
        including the requirement of equal population.
            (2) Compliance with the Voting Rights Act of 1965 (52 
        U.S.C. 10301 et seq.).
    (b) Prohibited Criteria.--Except to the extent necessary to comply 
with subsection (a) and section 4, in establishing or altering the 
boundaries of any congressional district of a State, the State may not 
consider the following criteria:
            (1) The political party registration or affiliation of the 
        residents of the State.
            (2) The voting history of the residents of the State.
            (3) The election results of the precincts of the State.
            (4) The place of residence of any incumbent, political 
        candidate, or potential political candidate.
    (c) Permissible Criteria.--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 violate section 4. The permissible criteria under this 
subsection may include any of the following:
            (1) Geographic contiguity and compactness.
            (2) Respect for communities of interest. Such communities 
        of interest--
                    (A) may be based on factors including shared 
                cultural or historical characteristics or economic 
                interests; and
                    (B) may not be based on associations with any 
                political party, incumbent, or political candidate, or 
                potential political candidate.
            (3) Respect for counties, cities, and other political 
        subdivisions.

SEC. 4. PROHIBITION ON PARTISAN GERRYMANDERING.

    (a) Prohibition.--Except as necessary to comply with section 3(a), 
a State shall not establish a congressional districting plan that has 
the purpose or will have the effect of unduly favoring or disfavoring 
any political party.
    (b) Enforcement.--
            (1) In general.--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 subsection (a).
            (2) Court order.--A court in a civil action under this 
        subsection--
                    (A) may issue an order invalidating the 
                congressional districting plan of such State on the 
                grounds that the plan violates subsection (a);
                    (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; and
                    (C) 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.
    (c) Remedies.--In remedying a violation of subsection (a), a court 
shall apply the following:
            (1) If the court finds that the State has established a 
        congressional 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 propose 
        a remedy to the court for the violation.
            (2) If the court finds that the State has established a 
        congressional 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 propose a remedy 
        to the court for the violation.
    (d) Legislative Privilege.--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 congressional 
districting plan.

SEC. 5. SAFE HARBOR.

    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 congressional districting plan.

SEC. 6. OTHER LAWS.

    (a) No Preemption.--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.
    (b) Other Districting Criteria.--Nothing in this Act shall be 
construed to prevent a State from adopting congressional districting 
criteria or procedures that do not conflict with this Act and that 
serve to limit potential exposure to liability under section 4(a).
    (c) 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.).

SEC. 7. SEVERABILITY.

    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.
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