I 111th CONGRESS 2d Session H. R. 5596 IN THE HOUSE OF REPRESENTATIVES June 24, 2010 Ms. Zoe Lofgren of California (for herself, Ms. Eshoo, Mrs. Capps, Ms. Matsui, Mr. Waxman, Mr. Farr, Mr. Costa, Mr. Honda, Mr. Stark, Ms. Lee of California, and Mr. Sherman) introduced the following bill; which was referred to the Committee on the Judiciary A BILL To prohibit States from carrying out more than one Congressional redistricting after a decennial census and apportionment, to require States to conduct such redistricting through independent commissions, and for other purposes.

1.

Short title; finding of constitutional authority

(a)

Short title

This Act may be cited as the Redistricting Reform Act of 2010. (b)

Finding

Congress finds that it has the authority to establish the terms and conditions States must follow in carrying out Congressional redistricting after an apportionment of Members of the House of Representatives because— (1)the authority granted to Congress under article I, section 4 of the Constitution of the United States gives Congress the power to enact laws governing the time, place, and manner of elections for Members of the House of Representatives; and (2)the authority granted to Congress under section 5 of the fourteenth amendment to the Constitution gives Congress the power to enact laws to enforce section 2 of such amendment, which requires Representatives to be apportioned among the several States according to their number.

2.

Limit on congressional redistricting after an apportionment

The Act entitled An Act for the relief of Doctor Ricardo Vallejo Samala and to provide for congressional redistricting, approved December 14, 1967 (2 U.S.C. 2c), is amended by adding at the end the following: A State which has been redistricted in the manner provided by law after an apportionment 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), may not be redistricted again until after the next apportionment of Representatives under such section, unless a court requires the State to conduct such subsequent redistricting to comply with the Constitution or to enforce the Voting Rights Act of 1965 (42 U.S.C. 1973 et seq.)..

3.

Requiring redistricting to be conducted through plan of independent State commission or plan of highest State court

(a)

Use of plan required

(1)

In general

Notwithstanding any other provision of law, any Congressional redistricting conducted by a State shall be conducted in accordance with— (A)the redistricting plan developed by the independent redistricting commission established in the State, in accordance with section 5; or (B)if the plan developed by such commission is not enacted into law, the redistricting plan selected by the highest court in the State or developed by a United States district court, in accordance with section 6. (2)

Other criteria and procedures permitted

Nothing in this Act or the amendments made by this Act may be construed to prohibit a State from conducting Congressional redistricting in accordance with such criteria and procedures as the State considers appropriate, to the extent that such criteria and procedures are consistent with the applicable requirements of this Act and the amendments made by this Act. (b)

Conforming amendment

Section 22(c) 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(c)), is amended by striking in the manner provided by the law thereof and inserting: in the manner provided by the Redistricting Reform Act of 2010.

4.

Independent redistricting commission

(a)

Appointment of members

(1)

In general

Each State shall establish an independent redistricting commission composed of the following members, each of whom is among the pool of nominees presented to the legislature by the Governor of the State under subsection (b)(1): (A)A number of members who are affiliated with the political party with the largest percentage of the registered voters in the State who are affiliated with a political party and a number of members who are affiliated with the political party with the second largest percentage of the registered voters in the State who are affiliated with a political party (as determined with respect to the most recent Statewide election for Federal office held in the State for which such information is available), such that the percentage of the members of the commission who are affiliated with each such party is (to the greatest extent practicable) equal to the percentage of registered voters in the State who are affiliated with such party, appointed with the approval of at least 2 of the following: (i)The leader of the party with the greatest number of seats in the upper house of the State legislature. (ii)The leader of the party with the second greatest number of seats in the upper house of the State legislature. (iii)The leader of the party with the greatest number of seats in the lower house of the State legislature. (iv)The leader of the party with the second greatest number of seats in the lower house of the State legislature. (B)A number of members who are not affiliated with any of the political parties referred to in subparagraph (A), who shall be appointed by not fewer than 2/3 of the members appointed under subparagraph (A), such that the percentage of the members of the commission who are appointed under this subparagraph is (to the greatest extent practicable) equal to the percentage of registered voters in the State who are not affiliated with any of the political parties referred to in subparagraph (A) (with respect to the most recent statewide election for Federal office held in the State for which such information is available). (2)

Special rule for states with unicameral legislature

In the case of a State with a unicameral legislature, the independent redistricting commission established under this subsection shall be composed of the following members, each of whom is among the pool of nominees presented to the legislature by the Governor of the State under subsection (b)(1): (A)A number of members who are affiliated with the political party with the largest percentage of the registered voters in the State who are affiliated with a political party and a number of members who are affiliated with the political party with the second largest percentage of the registered voters in the State who are affiliated with a political party (as determined with respect to the most recent Statewide election for Federal office held in the State for which such information is available), such that the percentage of the members of the commission who are affiliated with each such party is (to the greatest extent practicable) equal to the percentage of registered voters in the State who are affiliated with such party, appointed with the approval of at least one of the following: (i)The leader of the party with the greatest number of seats in the legislature. (ii)The leader of the party with the second greatest number of seats in the legislature. (B)A number of members who are not affiliated with any of the political parties referred to in subparagraph (A), who shall be appointed by not fewer than 2/3 of the members appointed under subparagraph (A), such that the percentage of the members of the commission who are appointed under this subparagraph is (to the greatest extent practicable) equal to the percentage of registered voters in the State who are not affiliated with any of the political parties referred to in subparagraph (A) (with respect to the most recent statewide election for Federal office held in the State for which such information is available). (3)

Number of members

A State’s independent redistricting commission established under this subsection shall have such number of members as the Governor of the State determines, except that the commission may not have more than 19 members. (4)

Chair

Members of an independent redistricting commission established under this subsection shall select by majority vote one member to serve as chair of the commission. (5)

Representation of various demographic groups

The membership of a State’s independent redistricting commission established under this subsection shall reflect various demographic groups of the State, including various ages, races, ethnicities, genders, and individuals from various geographic regions of the State. Nothing in this paragraph shall be construed to establish a specific quota for the number of members of a commission who are affiliated with any demographic group. (6)

Determination of political party affiliation

For purposes of this subsection, an individual shall be considered to be affiliated with a political party if the individual is registered with the party with respect to each of the 3 most recent elections for Federal office occurring prior to the individual’s appointment. (b)

Eligibility

(1)

Pool of nominees

(A)

Development of pool by governor

The Governor of each State shall develop a pool of nominees for membership on the State’s independent redistricting commission and present that pool to the legislature of the State. (B)

Individuals within pool

The Governor shall include an individual within the pool of nominees under this paragraph if— (i)the individual submits an application to the Governor for inclusion in the pool, at such time as the Governor may require; and (ii)the individual meets the criteria for eligibility under paragraph (2) for service as a member of the independent redistricting commission. (C)

Publication of names of applicants and reasons for rejection of inclusion

The Governor shall make public— (i)the name of each individual who applies to be included in the pool under this paragraph; (ii)the name of each individual who is included in the pool presented to the legislature; and (iii)in the case of any individual who applies to be included in the pool but is not included in the pool presented to the legislature, the reasons for the failure of the Governor to include the individual in the pool. (D)

Right to review decision not to include

An individual who submits an application for inclusion in the pool under this paragraph and who is not included in the pool presented to the legislature may file an action in the United States district court for the district in which the capital of the State is located for such declaratory and injunctive relief as may be appropriate. (2)

In general

An individual is eligible to serve as a member of an independent redistricting commission if— (A)as of the date of appointment, the individual is registered to vote in elections for Federal office held in the State, and was registered to vote in the 2 most recent general elections for Federal office held in the State; (B)the individual did not hold public office or run as a candidate for election for public office, serve as an employee of a political party or candidate for election for public office or elected public official, or hold a position as a registered lobbyist under the Lobbying Disclosure Act of 1995 (2 U.S.C. 1601 et seq.) or an equivalent State or local law, at any time during the 10-year period ending on the December 31 preceding the date of appointment; (C)the individual is not an immediate family member of a candidate for election for public office or an elected public official; and (D)the individual certifies that he or she will not run as a candidate for the office of Representative in the Congress 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). (3)

Discrimination

The membership of the Commission shall not be selected in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color. A violation of this paragraph is established if, based on the totality of circumstances, it is shown that the membership of the Commission is not equally open to participation by members of a class of citizens protected by this paragraph in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. (4)

Immediate family member defined

In paragraph (2)(C), the term immediate family member means, with respect to an individual, a father, mother, son, daughter, brother, sister, husband, wife, father-in-law, or mother-in-law. (c)

Vacancy

A vacancy in the commission shall be filled in the manner in which the original appointment was made. (d)

Deadline

(1)

In general

Each State shall establish a commission under this section, and the members of the commission shall appoint the commission’s chair, not later than the first February 1 which occurs after the chief executive of a State receives the State apportionment notice. (2)

Appointment of chair required prior to development of redistricting plan

The commission may not take any action to develop a redistricting plan for the State under section 5 until the appointment of the commission’s chair. (e)

Requiring majority approval for actions

The independent redistricting commission of a State may not submit a redistricting plan to the State legislature, or take any other action, without the approval of at least a majority of its members given at a meeting at which at least a majority of its members are present. (f)

Termination

(1)

In general

The independent redistricting commission of a State shall terminate on the day after the date of the first regularly scheduled general election for Federal office which occurs after the chief executive of the State receives the State apportionment notice. (2)

Preservation of records

The State shall ensure that the records of the independent redistricting commission are retained in the appropriate State archive in such manner as may be necessary to enable the State to respond to any civil action brought with respect to Congressional redistricting in the State.

5.

Development of Redistricting Plan by Independent Commission; Public Notice and Input

(a)

Development of redistricting plan

(1)

Criteria

The independent redistricting commission of a State shall develop a redistricting plan for the State in accordance with the following criteria: (A)Districts shall comply with the Constitution of the United States and the Voting Rights Act of 1965 (42 U.S.C. 1973 et seq.). The plan shall neither disperse nor concentrate minority populations protected under the Voting Rights Act in a manner that has an adverse effect on their ability to elect their candidate of choice. (B)District boundaries shall keep communities of interest to the extent practicable. Communities of interest may be based on, but are not limited to, trade areas, natural resources, population density, shared infrastructure, localities with a history of joint governmental cooperation, and other interests articulated by residents in governmental forums. (C)Districts shall each have equal population per representative, to the extent practicable, and in accordance with Federal constitutional standards. (D)Districts shall be geographically contiguous. (E)To the extent practicable, district lines shall use visible geographic features and shall remain within geographic boundaries. (F)To the extent practicable and consistent with subparagraphs (A), (B), (C), (D), and (E), district lines shall use city and county boundaries, or undivided census tracts or block groups. (G)To the extent practicable, districts shall be geographically compact. (2)

Factors prohibited from consideration

In developing the redistricting plan for the State, the independent redistricting commission may not take into consideration any of the following factors, except to the extent necessary to comply with the Voting Rights Act of 1965: (A)The voting history of the population of a Congressional district, except that the commission may take such history into consideration to the extent necessary to comply with any State law which requires the establishment of competitive Congressional districts. (B)The political party affiliation of the population of a district. (C)The residence of incumbent Members of the House of Representatives in the State. (3)

Public notice and input

(A)

Public hearings; solicitation of input from public

The commission shall hold each of its meetings in public, and shall solicit and take into consideration comments from the public in developing the redistricting plan for the State. The commission shall notify the public through the publication of notice in newspapers of general circulation throughout the State, and through a public Internet site of the State government, of the time and place of its meetings, of its solicitation of public comments, and of the means by which the public should submit comments to the commission. (B)

Notice of plans

At the time the commission submits a redistricting plan to the legislature of the State under subsection (b)(1), the commission shall notify the public through the publication of notice in newspapers of general circulation throughout the State, and shall publish a detailed version of the plan (including a map showing each Congressional district established under the plan and the voting age population by race of each such district) on a public Internet site of the State government. The commission shall provide such public notice of any redistricting plan it develops for a minimum of four weeks prior to submission of that plan to the legislature as provided for in subsection (b). (b)

Submission of plans to legislature

(1)

In general

At any time prior to the first November 1 which occurs after the chief executive of the State receives the State apportionment notice, the commission may submit redistricting plans developed by the commission under this section to the legislature of the State. (2)

Consideration of plan by legislature

After receiving any redistricting plan under paragraph (1), the legislature of a State may— (A)approve the plan as submitted by the commission without amendment and forward the plan to the chief executive of the State; or (B)reject the plan. (3)

Enactment of plan

(A)

In general

A redistricting plan developed by the commission shall be considered to be enacted into law only if the plan is forwarded to the chief executive of the State pursuant to paragraph (2)(A) and— (i)the chief executive approves the plan as forwarded by the legislature without amendment; or (ii)the chief executive vetoes the plan and the legislature overrides the veto in accordance with the applicable law of the State, except that at no time may the plan be amended. (B)

Special rule

In the case of a State in which the chief executive is prohibited under State law from acting on a redistricting plan, a redistricting plan developed by the commission shall be considered to be enacted into law if— (i)the plan is submitted to the legislature of the State; and (ii)the legislature approves the plan as submitted by the commission without amendment.

6.

Selection of plan by courts

(a)

State court

(1)

Submission and selection of plan

If a redistricting plan developed by the independent redistricting commission of a State is not enacted into law under section 5(b)(3) by the first December 1 which occurs after the chief executive of the State receives the State apportionment notice, the commission may submit redistricting plans developed by the commission in accordance with section 5 to the highest court of the State, which may select and publish one of the submitted plans to serve as the redistricting plan for the State. (2)

No modification of plan permitted

The highest court of a State may not modify any redistricting plan submitted under this subsection. (b)

Federal court

(1)

Failure of state court to select plan

(A)

Notice to court if plan not selected by state court

If a State court to whom redistricting plans have been submitted under subsection (a) does not select a plan to serve as the redistricting plan for the State under such subsection on or before the first December 31 which occurs after the chief executive of the State receives the State apportionment notice, the State shall file a notice with the United States district court for the district in which the capital of the State is located. (B)

Development and selection of plan by Federal court

Not later than 30 days after receiving a notice from a State under subparagraph (A), the court shall develop and publish a final redistricting plan for the State. (2)

Failure of state to establish commission

(A)

In general

If a State does not establish an independent redistricting commission under section 4 by the first September 1 which occurs after the chief executive of the State receives the State apportionment notice— (i)the State may not establish the commission; and (ii)the United States district court for the district in which the capital of the State is located shall develop and publish a final redistricting plan for the State not later than the first December 1 which occurs after the chief executive of the State receives the State apportionment notice. (B)

Determination of failure to establish commission

For purposes of subparagraph (A), a State shall be considered to have failed to establish an independent redistricting commission by the date referred to in such subparagraph if a chair of the commission has not been appointed on or before such date. (3)

Criteria

It is the sense of Congress that, in developing a redistricting plan for a State under this subsection, the district court should adhere to the same terms and conditions that applied to the development of the plan of the commission under section 5(a). (c)

Access to information and records of commission

A court which is required to select, publish, or develop a redistricting plan for a State under this section shall have access to any information, data, software, or other records and material used by the independent redistricting commission of the State in carrying out its duties under this Act.

7.

Special rule for redistricting conducted under order of Federal court

If a Federal court requires a State to conduct redistricting subsequent to an apportionment of Representatives in the State in order to comply with the Constitution or to enforce the Voting Rights Act of 1965, sections 5 and 6 shall apply with respect to the redistricting, except that— (1)the deadline for the establishment of the independent redistricting commission and the appointment of the commission’s chair (as described in section 4(d)(1)) shall be the expiration of the 30-day period which begins on the date of the final order of the Federal court to conduct the redistricting; (2)the deadline for the submission of redistricting plans to the legislature by the commission, and the date of the termination of the commission (as described in section 4(f)) shall be the expiration of the 150-day period which begins on the date of the final order of the Federal court to conduct the redistricting; (3)the deadline for the selection and publication of the plan by the highest court of the State (as described in section 6(a)) shall be the expiration of the 180-day period which begins on the date of the final order of the Federal court to conduct the redistricting; and (4)the deadline for the selection and publication of the plan by the district court of the United States (as described in section 6(b)) shall be the expiration of the 210-day period which begins on the date of the final order of the Federal court to conduct the redistricting.

8.

Payments to States for carrying out redistricting

(a)

Authorization of payments

Subject to subsection (d), not later than 30 days after a State receives a State apportionment notice, the Election Assistance Commission shall make a payment to the State in an amount equal to the product of— (1)the number of Representatives to which the State is entitled, as provided under the notice; and (2)$150,000. (b)

Use of funds

A State shall use the payment made under this section to establish and operate the State’s independent redistricting commission, to implement the State redistricting plan, and to otherwise carry out Congressional redistricting in the State. (c)

No payment to states with single member

The Election Assistance Commission shall not make a payment under this section to any State which is not entitled to more than one Representative under its State apportionment notice. (d)

Requiring Establishment of Commission as Condition of Payment

The Election Assistance Commission may not make a payment to a State under this section until the State certifies to the Commission that the State has established an independent redistricting commission, and that a chair of the commission has been appointed, in accordance with section 4. (e)

Authorization of appropriations

There are authorized to be appropriated such sums as may be necessary for payments under this section.

9.

State apportionment notice defined

In this Act, the State apportionment notice means, with respect to a State, the notice sent to the State from the Clerk of the House of Representatives under section 22(b) 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), of the number of Representatives to which the State is entitled.

10.

Civil enforcement and private right of action

(a)

Attorney general

The Attorney General may bring a civil action in an appropriate district court for such declaratory or injunctive relief as is necessary to carry out this Act. (b)

Availability of Private Right of Action

(1)

Action challenging contents of State redistricting plan

A person who is aggrieved by a violation of this Act which consists of the failure of a State redistricting plan enacted into law under section 5(b)(3) to be in compliance with paragraph (1) or paragraph (2) of section 5(a) may bring a civil action in an appropriate district court for declaratory or injunctive relief. (2)

Other actions

A person who is aggrieved by a violation of this Act which is not described in paragraph (1) may bring a civil action in an appropriate district court for declaratory or injunctive relief with respect to the violation if— (A)the person provides written notice of the violation to the chair of the independent redistricting commission of the State involved; (B)the violation is not corrected during the 90-day period which begins on the date of the receipt of the written notice; and (C)the person brings the action not later than 30 days after the expiration of the 90-day period referred to in clause (ii). (3)

Statute of limitations

No civil action may be brought under this subsection with respect to a State after the expiration of the 30-day period which begins on the date the State redistricting plan is enacted into law under section 5(b)(3). (c)

Expedited Judicial Review

In any action brought for declaratory or injunctive relief under this section, the following rules shall apply: (1)The action shall be filed in the appropriate United States district court and shall be heard by a 3-judge court convened pursuant to section 2284 of title 28, United States Code. (2)The 3-judge court shall consolidate actions brought for relief under subsection (b)(1) with respect to the same State redistricting plan. (3)A copy of the complaint shall be delivered promptly to the Clerk of the House of Representatives and the Secretary of the Senate. (4)A final decision in the action shall be reviewable only by appeal directly to the Supreme Court of the United States. Such appeal shall be taken by the filing of a notice of appeal within 10 days, and the filing of a jurisdictional statement within 30 days, of the entry of the final decision. (5)It shall be the duty of the district court and the Supreme Court of the United States to advance on the docket and to expedite to the greatest possible extent the disposition of the action and appeal. (d)

Location of Court

For purposes of an action under this section, the appropriate district court shall be the district court of the United States for the district which includes the capital of the State involved. (e)

Attorney’s fees

In a civil action under this section, the court may allow the prevailing party (other than the United States) reasonable attorney fees, including litigation expenses, and costs. (f)

Relation to other laws

(1)The rights and remedies established by this section are in addition to all other rights and remedies provided by law, and neither the rights and remedies established by this section nor any other provision of this Act shall supersede, restrict, or limit the application of the Voting Rights Act of 1965 (42 U.S.C. 1973 et seq.). (2)Nothing in this Act authorizes or requires conduct that is prohibited by the Voting Rights Act of 1965 (42 U.S.C. 1973 et seq.).

11.

Effective date

This Act and the amendments made by this Act shall become effective upon the date of enactment.