[Federal Register Volume 76, Number 27 (Wednesday, February 9, 2011)]
[Notices]
[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
Wednesday,
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 /
Notices
[[Page 7470]]
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
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
[[Page 7471]]
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
neighborhood.
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
[[Page 7472]]
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
cases.
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
[[Page 7473]]
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
category.
Dated: February 3, 2011.
Thomas E. Perez,
Assistant Attorney General, Civil Rights Division.
[FR Doc. 2011-2797 Filed 2-8-11; 8:45 am]
BILLING CODE 4410-13-P