[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
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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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