Title: Fair Maps Act of 2019
Policy area: Government Operations and Politics

Summary:
Fair Maps Act of 2019
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.
Furthermore, a state that has an approved remedial districting plan may not be redistricted again until after the next apportionment of Representatives unless a court requires the state to conduct such subsequent redistricting to comply with the U.S. Constitution, the Voting Rights Act of 1965, the state's constitution, or the terms or conditions of this bill.

[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 1972 Introduced in Senate (IS)]

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116th CONGRESS
  1st Session
                                S. 1972

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, 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 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 2019''.

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 (referred to in this Act as a ``districting plan'') in accordance 
with each of the following criteria:
            (1) Districts shall comply with the United States 
        Constitution, including the requirement that they equalize 
        total population.
            (2) Districts shall comply with the Voting Rights Act of 
        1965 (52 U.S.C. 10301 et seq.).
            (3) 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.
            (4) 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.
    (b) Prohibited Criteria.--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:
            (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 result in a violation of section 4. The permissible 
criteria under this subsection may include any of the following:
            (1) Geographic contiguity and compactness.
            (2) Respect for counties, cities, and other political 
        subdivisions.

SEC. 4. 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.

SEC. 5. ENFORCEMENT AND REMEDIES.

    (a) Right of Action.--
            (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 section 3 or 4.
            (2) Court order.--A court in a civil action under this 
        subsection--
                    (A) may issue an order--
                            (i) invalidating the districting plan of 
                        such State on the grounds that the plan 
                        violates section 3 or 4; and
                            (ii) 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);
                    (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
                    (C) 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.
    (b) Remedies Related to Prohibited Partisan Gerrymandering.--In 
remedying a violation of section 4, a court shall apply the following:
            (1) 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.
            (2) 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--
                    (A) 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
                    (B) allow the State the opportunity to develop a 
                remedial districting plan, which shall be approved by 
                the court before taking effect.
    (c) 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.
    (d) 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.
    (e) Interim Plan.--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--
            (1) 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
            (2) 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)).
    (f) 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 districting plan.

SEC. 6. 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 districting plan.

SEC. 7. TRANSPARENCY AND REPORTING.

    (a) Data.--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.
    (b) Notice.--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.
    (c) Report.--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.

SEC. 8. 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.

SEC. 9. 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) 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. 10. 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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