[Federal Register Volume 76, Number 27 (Wednesday, February 9, 2011)]
[Pages 7470-7473]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-2797]

[[Page 7469]]

Vol. 76


No. 27

February 9, 2011

Part III

Department of Justice


Guidance Concerning Redistricting Under Section 5 of the Voting Rights 
Act; Notice

Federal Register / Vol. 76, No. 27 / Wednesday, February 9, 2011 / 

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Guidance Concerning Redistricting Under Section 5 of the Voting 
Rights Act; Notice

AGENCY: Office of the Assistant Attorney General, Civil Rights 
Division, 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 legislation and judicial decisions, it is 
appropriate to issue guidance concerning the review of redistricting 
plans submitted to the Attorney General for review pursuant to Section 
5 of the Voting Rights Act.

FOR FURTHER INFORMATION CONTACT:  T. Christian Herren, Jr., Chief, 
Voting Section, Civil Rights Division, United States Department of 
Justice, Washington, DC 20530, (202) 514-1416.

SUPPLEMENTARY INFORMATION: Section 5 of the Voting Rights Act, 42 
U.S.C. 1973c, requires jurisdictions identified in Section 4 of the Act 
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 2011, these covered jurisdictions will begin to seek 
review under Section 5 of the Voting Rights Act of redistricting plans 
based on the 2010 Census. Based on past experience, the overwhelming 
majority of the covered jurisdictions will submit their redistricting 
plans to the Attorney General. This guidance is not legally binding; 
rather, it is intended only to provide assistance to jurisdictions 
covered by the preclearance requirements of Section 5.

Guidance Concerning Redistricting Under Section 5 of the Voting Rights 
Act, 42 U.S.C. 1973c

    Following release of the 2010 Census data, the Department of 
Justice expects to receive several thousand submissions of 
redistricting plans for review pursuant to Section 5 of the Voting 
Rights Act. The Civil Rights Division has received numerous requests 
for guidance similar to that it issued prior to the 2000 Census 
redistricting cycle concerning the procedures and standards that will 
be applied during review of these redistricting plans. 67 FR 5411 
(January 18, 2001). In addition, in 2006, Congress reauthorized the 
Section 5 review requirement and refined its definition of some 
substantive standards for compliance with Section 5. In view of these 
developments, issuing revised guidance is appropriate.
    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;
     Analysis of Plans (discriminatory purpose and 
retrogressive effect);
     Alternatives to Retrogressive Plans; and
     Use of 2010 Census Data.

The Scope of Section 5 Review

    Under Section 5, a covered jurisdiction has the burden of 
establishing that a proposed redistricting plan ``neither has the 
purpose nor will have the effect of denying or abridging the right to 
vote on account of race or color, or in contravention of the guarantees 
set forth in [Section 4(f)(2) of the Act]'' (i.e., membership in a 
language minority group defined in the Act). 42 U.S.C 1973c(a). A plan 
has a discriminatory effect under the statute if, when compared to the 
benchmark plan, the submitting jurisdiction cannot establish that it 
does not result in a ``retrogression in the position of racial 
minorities with respect to their effective exercise of the electoral 
franchise.'' Beer v. United States, 425 U.S. 125, 141 (1976).
    If the proposed redistricting plan is submitted to the Department 
of Justice for administrative review, and the Attorney General 
determines that the jurisdiction has failed to show the absence of any 
discriminatory purpose or retrogressive effect of denying or abridging 
the right to vote on account of race, color or membership in a language 
minority group defined in the Act, the Attorney General will interpose 
an objection. If, in the alternative, the jurisdiction seeks a 
declaratory judgment from the United States District Court for the 
District of Columbia, that court will utilize the identical standard to 
determine whether to grant the request; i.e., whether the jurisdiction 
has established that the plan is free from discriminatory purpose or 
retrogressive effect. Absent administrative preclearance from the 
Attorney General or a successful declaratory judgment action in the 
district court, the jurisdiction may not implement its proposed 
redistricting plan.
    The Attorney General may not interpose an objection to a 
redistricting plan on the grounds that it violates the one-person one-
vote principle, on the grounds that it violates Shaw v. Reno, 509 U.S. 
630 (1993), or on the grounds that it violates Section 2 of the Voting 
Rights Act. The same standard applies in a declaratory judgment action. 
Therefore, jurisdictions should not regard a determination of 
compliance with Section 5 as preventing subsequent legal challenges to 
that plan under other statutes by the Department of Justice or by 
private plaintiffs. 42 U.S.C. 1973c(a); 28 CFR 51.49.

The Section 5 ``Benchmark''

    As noted, under Section 5, a jurisdiction's proposed redistricting 
plan is compared to the ``benchmark'' plan to determine whether the use 
of the new plan would result in a retrogressive effect. The 
``benchmark'' against which a new plan is compared is the last legally 
enforceable redistricting plan in force or effect. Riley v. Kennedy, 
553 U.S. 406 (2008); 28 CFR 51.54(b)(1). Generally, the most recent 
plan to have received Section 5 preclearance or to 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. 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).
    A plan found to be unconstitutional by a Federal court under the 
principles of Shaw v. Reno and its progeny cannot serve as the Section 
5 benchmark, Abrams v. Johnson, 521 U.S. 74 (1997), and in such 
circumstances, the benchmark for Section 5 purposes will be 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, the question of whether the

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benchmark plan is constitutional will not be considered during the 
Department's Section 5 review.

Analysis of Plans

    As noted above, there are two necessary components to the analysis 
of whether a proposed redistricting plan meets the Section 5 standard. 
The first is a determination that the jurisdiction has met its burden 
of establishing that the plan was adopted free of any discriminatory 
purpose. The second is a determination that the jurisdiction has met 
its burden of establishing that the proposed plan will not have a 
retrogressive effect.

Discriminatory Purpose

    Section 5 precludes implementation of a change affecting voting 
that has the purpose of denying or abridging the right to vote on 
account of race or color, or membership in a language minority group 
defined in the Act. The 2006 amendments provide that the term 
``purpose'' in Section 5 includes ``any discriminatory purpose,'' and 
is not limited to a purpose to retrogress, as was the case after the 
Supreme Court's decision in Reno v. Bossier Parish (``Bossier II), 528 
U.S. 320 (2000). The Department will examine the circumstances 
surrounding the submitting authority's adoption of a submitted voting 
change, such as a redistricting plan, to determine whether direct or 
circumstantial evidence exists of any discriminatory purpose of denying 
or abridging the right to vote on account of race or color, or 
membership in a language minority group defined in the Act.
    Direct evidence detailing a discriminatory purpose may be gleaned 
from the public statements of members of the adopting body or others 
who may have played a significant role in the process. Busbee v. Smith, 
549 F. Supp. 494, 508 (D.D.C. 1982), aff'd, 459 U.S. 1166 (1983). The 
Department will also evaluate whether there are instances where the 
invidious element may be missing, but the underlying motivation is 
nonetheless intentionally discriminatory. In the Garza case, Judge 
Kozinski provided the clearest example:

    Assume you are an anglo homeowner who lives in an all-white 
neighborhood. Suppose, also, that you harbor no ill feelings toward 
minorities. Suppose further, however, that some of your neighbors 
persuade you that having an integrated neighborhood would lower 
property values and that you stand to lose a lot of money on your 
home. On the basis of that belief, you join a pact not to sell your 
house to minorities. Have you engaged in intentional racial and 
ethnic discrimination? Of course you have. Your personal feelings 
toward minorities don't matter; what matters is that you 
intentionally took actions calculated to keep them out of your 

Garza and United States v. County of Los Angeles, 918 F.2d 763, 778 n.1 
(9th Cir. 1990) (Kozinski, J., concurring and dissenting in part), 
cert. denied, 498 U.S. 1028 (1991).
    In determining whether there is sufficient circumstantial evidence 
to conclude that the jurisdiction has not established the absence of 
the prohibited discriminatory purpose, the Attorney General will be 
guided by the Supreme Court's illustrative, but not exhaustive, list of 
those ``subjects for proper inquiry in determining whether racially 
discriminatory intent existed,'' outlined in Village of Arlington 
Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 268 
(1977). In that case, the Court, noting that such an undertaking 
presupposes a ``sensitive inquiry,'' identified certain areas to be 
reviewed in making this determination: (1) The impact of the decision; 
(2) the historical background of the decision, particularly if it 
reveals a series of decisions undertaken with discriminatory intent; 
(3) the sequence of events leading up to the decision; (4) whether the 
challenged decision departs, either procedurally or substantively, from 
the normal practice; and (5) contemporaneous statements and viewpoints 
held by the decision-makers. Id. at 266-68.
    The single fact that a jurisdiction's proposed redistricting plan 
does not contain the maximum possible number of districts in which 
minority group members are a majority of the population or have the 
ability to elect candidates of choice to office, does not mandate that 
the Attorney General interpose an objection based on a failure to 
demonstrate the absence of a discriminatory purpose. Rather, the 
Attorney General will base the determination on a review of the plan in 
its entirety.

Retrogressive Effect

    An analysis of whether the jurisdiction has met its burden of 
establishing that the proposed plan would not result in a 
discriminatory or ``retrogressive'' effect starts with a basic 
comparison of the benchmark and proposed plans at issue, using updated 
census data in each. Thus, the Voting Section staff loads the 
boundaries of the benchmark and proposed plans into the Civil Rights 
Division's geographic information system [GIS]. Population data are 
then calculated for each district in the benchmark and the proposed 
plans using the most recent decennial census data.
    A proposed plan is retrogressive under Section 5 if its net effect 
would be to reduce minority voters' ``effective exercise of the 
electoral franchise'' when compared to the benchmark plan. Beer v. 
United States at 141. In 2006, Congress clarified that this means the 
jurisdiction must establish that its proposed redistricting plan will 
not have the effect of ``diminishing the ability of any citizens of the 
United States'' because of race, color, or membership in a language 
minority group defined in the Act, ``to elect their preferred candidate 
of choice.'' 42 U.S.C. 1973c(b) & (d). In analyzing redistricting 
plans, the Department will follow the congressional directive of 
ensuring that the ability of such citizens to elect their preferred 
candidates of choice is protected. That ability to elect either exists 
or it does not in any particular circumstance.
    In determining whether the ability to elect exists in the benchmark 
plan and whether it continues in the proposed plan, the Attorney 
General does not rely on any predetermined or fixed demographic 
percentages at any point in the assessment. Rather, in the Department's 
view, this determination requires a functional analysis of the 
electoral behavior within the particular jurisdiction or election 
district. As noted above, census data alone may not provide sufficient 
indicia of electoral behavior to make the requisite determination. 
Circumstances, such as differing rates of electoral participation 
within discrete portions of a population, may impact on the ability of 
voters to elect candidates of choice, even if the overall demographic 
data show no significant change.
    Although comparison of the census population of districts in the 
benchmark and proposed plans is the important starting point of any 
Section 5 analysis, additional demographic and election data in the 
submission is often helpful in making the requisite Section 5 
determination. 28 CFR 51.28(a). For example, census population data may 
not reflect significant differences in group voting behavior. 
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.
    The Section 5 Procedures contain the factors that the courts have 
considered in deciding whether or not a redistricting plan complies 
with Section 5. These factors include whether minority voting strength 
is reduced by the proposed redistricting; whether minority 
concentrations are fragmented

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among different districts; whether minorities are overconcentrated in 
one or more districts; whether alternative plans satisfying the 
jurisdiction's legitimate governmental interests exist, and whether 
they 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. 28 CFR 51.56-59.

Alternatives to Retrogressive Plans

    There may be circumstances in which the jurisdiction asserts that, 
because of shifts in population or other significant changes since the 
last redistricting (e.g., residential segregation and demographic 
distribution of the population within the jurisdiction, the physical 
geography of the jurisdiction, the jurisdiction's historical 
redistricting practices, political boundaries, such as cities or 
counties, and/or state redistricting requirements), retrogression is 
unavoidable. In those circumstances, the submitting jurisdiction 
seeking preclearance of such a plan bears the burden of demonstrating 
that a less-retrogressive plan cannot reasonably be drawn.
    In considering whether less-retrogressive 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 non-retrogressive or less retrogressive than the 
submitted plan, the Attorney General will interpose an objection.
    Preventing retrogression under Section 5 does not require 
jurisdictions to violate the one-person, one-vote principle. 52 FR 488 
(Jan. 6, 1987). Similarly, preventing retrogression under Section 5 
does not require jurisdictions to violate Shaw v. Reno and related 
    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 significantly greater overall population deviations 
is not considered a reasonable alternative.
    In assessing whether a less retrogressive 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 that 
require the jurisdiction to make the least possible change to existing 
district boundaries, to 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 or illustrative plans, the Department of Justice relies 
upon plans that make the least departure from a jurisdiction's stated 
redistricting criteria needed to prevent retrogression.

The Use of 2010 Census Data

    The most current population data are used to measure both the 
benchmark plan and the proposed redistricting plan. 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, 
528 U.S. 320, 334 (2000) (``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 2010 Census, the Department of Justice 
will, consistent with past practice, evaluate redistricting submissions 
using the 2010 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 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 interposing an objection. However, unless other population 
data used can be shown to be more accurate and reliable than the Public 
Law 94-171 data, the Attorney General 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.
    As in 2000, the 2010 Census Public Law 94-171 data will include 
counts of persons who have identified themselves as members of more 
than one racial category. This reflects the October 30, 1997, decision 
by the Office of Management and Budget [OMB] to incorporate multiple-
race reporting into the Federal statistical system. 62 FR 58782-58790. 
Likewise, 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 
census responses will be allocated by Federal executive agencies for 
use in civil rights monitoring and enforcement.
    The Department will follow both aggregation methods defined in Part 
II of the Bulletin. The Department's initial review of a plan will be 
based upon allocating any multiple-item response that includes white 
and one of the five other race categories identified in the response. 
Thus, the total numbers 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 responses in which an individual selected a 
minority race and white race.
    The Department will then move to the second step in its application 
of the census data to the plan by reviewing the other multiple-race 
category, which is comprised of all multiple-race responses consisting 
of more than one minority race. Where there are significant numbers of 
such responses, we will, as required by both the OMB guidance and 
judicial opinions, allocate these responses on an iterative basis to 
each of the component single-race categories for analysis. Georgia v. 
Ashcroft, 539 U.S. 461, 473, n.1 (2003).
    As in the past, the Department will analyze Latino voters as a 
separate group for purposes of enforcement of the Voting Rights Act. If 
there are significant numbers of responses which

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report Latino and one or more minority races (for example, Latinos who 
list their race as Black/African-American), those responses will be 
allocated alternatively to the Latino category and the minority race 

    Dated: February 3, 2011.
Thomas E. Perez,
Assistant Attorney General, Civil Rights Division.
[FR Doc. 2011-2797 Filed 2-8-11; 8:45 am]