Sec. 5003. Criteria for redistricting
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A State may not use a congressional redistricting plan enacted following the notice of apportionment transmitted to the President on April 26, 2021, or any subsequent notice of apportionment, if such plan is not in compliance with this section, without regard to whether or not the plan was enacted by the State before, on, or after the effective date of this title. Under the redistricting plan of a State, there shall be established single-member congressional districts using the following criteria as set forth in the following order of priority:
Districts shall comply with the United States Constitution, including the requirement that they substantially equalize total population, without regard to age, citizenship status, or immigration status. Districts shall comply with the Voting Rights Act of 1965 ( 52 U.S.C. 10301 et seq. ), including by creating any districts where, if based upon the totality of the circumstances, 2 or more politically cohesive groups protected by such Act are able to elect representatives of choice in coalition with one another, and all applicable Federal laws.
Districts shall be drawn, to the extent that the totality of the circumstances warrant, to ensure the practical ability of a group protected under the Voting Rights Act of 1965 ( 52 U.S.C. 10301 et seq. ) to participate in the political process and to nominate candidates and to elect representatives of choice is not diluted or diminished, regardless of whether or not such protected group constitutes a majority of a district’s population, voting age population, or citizen voting age population.
For purposes of subparagraph (A), the assessment of whether a protected group has the practical ability to nominate candidates and to elect representatives of choice shall require the consideration of the following factors: Whether the group is politically cohesive. Whether there is racially polarized voting in the relevant geographic region. If there is racially polarized voting in the relevant geographic region, whether the preferred candidates of the group nevertheless receive a sufficient amount of consistent crossover support from other voters such that the group is a functional majority with the ability to both nominate candidates and elect representatives of choice.
Districts shall be drawn to represent communities of interest and neighborhoods to the extent practicable after compliance with the requirements of paragraphs
(1)through (3). A community of interest is defined as an area for which the record before the entity responsible for developing and adopting the redistricting plan demonstrates the existence of broadly shared interests and representational needs, including shared interests and representational needs rooted in common ethnic, racial, economic, Indian, social, cultural, geographic, or historic identities, or arising from similar socioeconomic conditions. The term communities of interest may, if the record warrants, include political subdivisions such as counties, municipalities, Indian lands, or school districts, but shall not include common relationships with political parties or political candidates. For purposes of subparagraph (A), in considering the needs of multiple, overlapping communities of interest, the entity responsible for developing and adopting the redistricting plan shall give greater weight to those communities of interest whose representational needs would most benefit from the community’s inclusion in a single congressional district. A State may not use a redistricting plan to conduct an election if the plan’s congressional districts, when considered cumulatively on a statewide basis, have been drawn with the intent or have the effect of materially favoring or disfavoring any political party. The determination of whether a redistricting plan has the effect of materially favoring or disfavoring a political party shall be based on an evaluation of the totality of circumstances which, at a minimum, shall involve consideration of each of the following factors: Computer modeling based on relevant statewide general elections for Federal office held over the 8 years preceding the adoption of the redistricting plan setting forth the probable electoral outcomes for the plan under a range of reasonably foreseeable conditions. An analysis of whether the redistricting plan is statistically likely to result in partisan advantage or disadvantage on a statewide basis, the degree of any such advantage or disadvantage, and whether such advantage or disadvantage is likely to be present under a range of reasonably foreseeable electoral conditions. A comparison of the modeled electoral outcomes for the redistricting plan to the modeled electoral outcomes for alternative plans that demonstrably comply with the requirements of paragraphs (1), (2), and
(3)of subsection
(b)in order to determine whether reasonable alternatives exist that would result in materially lower levels of partisan advantage or disadvantage on a statewide basis. For purposes of this subparagraph, alternative plans considered may include both actual plans proposed during the redistricting process and other plans prepared for purposes of comparison. Any other relevant information, including how broad support for the redistricting plan was among members of the entity responsible for developing and adopting the plan and whether the processes leading to the development and adoption of the plan were transparent and equally open to all members of the entity and to the public. In any civil action brought under section 5006 in which a party asserts a claim that a State has enacted a redistricting plan which is in violation of this subsection, a party may file a motion not later than 30 days after the enactment of the plan (or, in the case of a plan enacted before the effective date of this Act, not later than 30 days after the effective date of this Act) requesting that the court determine whether a presumption of such a violation exists. If such a motion is timely filed, the court shall hold a hearing not later than 15 days after the date the motion is filed to assess whether a presumption of such a violation exists. To conduct the assessment required under subparagraph (A), the court shall do the following: Determine the number of congressional districts under the plan that would have been carried by each political party’s candidates for the office of President and the office of Senator in the 2 most recent general elections for the office of President and the 2 most recent general elections for the office of Senator (other than special general elections) immediately preceding the enactment of the plan, except that if a State conducts a primary election for the office of Senator which is open to candidates of all political parties, the primary election shall be used instead of the general election and the number of districts carried by a party’s candidates for the office of Senator shall be determined on the basis of the combined vote share of all candidates in the election who are affiliated with such party. Determine, for each of the 4 elections assessed under clause (i), whether the number of districts that would have been carried by any party’s candidate as determined under clause
(i)results in partisan advantage or disadvantage in excess of the applicable threshold described in subparagraph (C). The degree of partisan advantage or disadvantage shall be determined by one or more standard quantitative measures of partisan fairness that— use a party's share of the statewide vote to calculate a corresponding benchmark share of seats; and measure the amount by which the share of seats the party’s candidate would have won in the election involved exceeds the benchmark share of seats. The applicable threshold described in this subparagraph is, with respect to a State and a number of seats, the greater of— an amount equal to 7 percent of the number of congressional districts in the State; or one congressional district. In carrying out this subsection— the standard quantitative measures of partisan fairness used by the court may include the simplified efficiency gap but may not include strict proportionality; and the court may not round any number. A plan is presumed to violate paragraph
(1)if, on the basis of at least one standard quantitative measure of partisan fairness, it exceeds the applicable threshold described in subparagraph
(C)with respect to 2 or more of the 4 elections assessed under subparagraph (B). Notwithstanding any other provision of this title, in any action under this paragraph, the following rules shall apply: Upon filing of a motion under subparagraph (A), a State’s use of the plan which is the subject of the motion shall be automatically stayed pending resolution of such motion. If after considering the motion, the court rules that the plan is presumed under subparagraph
(E)to violate paragraph (1), a State may not use such plan until and unless the court which is carrying out the determination of the effect of the plan under paragraph
(2)determines that, notwithstanding the presumptive violation, the plan does not violate paragraph (1). The absence of a presumption of a violation with respect to a redistricting plan as determined under this paragraph shall not affect the determination of the effect or intent of the plan under this section. A court may rely on all available evidence when determining whether a redistricting plan was drawn with the intent to materially favor or disfavor a political party, including evidence of the partisan effects of a plan, the degree of support the plan received from members of the entity responsible for developing and adopting the plan, and whether the processes leading to development and adoption of the plan were transparent and equally open to all members of the entity and to the public. No redistricting plan shall be found to be in violation of paragraph
(1)because of the proper application of the criteria set forth in paragraphs (1), (2), or
(3)of subsection (b), unless one or more alternative plans could have complied with such paragraphs without having the effect of materially favoring or disfavoring a political party. In developing the redistricting plan for the State, the State may not take into consideration any of the following factors, except as necessary to comply with the criteria described in paragraphs
(1)through
(3)of subsection (b), to achieve partisan fairness and comply with subsection (b), and to enable the redistricting plan to be measured against the external metrics described in section 5004(c): The residence of any Member of the House of Representatives or candidate. The political party affiliation or voting history of the population of a district. A State may not rely upon criteria, districting principles, or other policies of the State which are not set forth in this section to justify non-compliance with the requirements of this section. This section applies to any authority, whether appointed, elected, judicial, or otherwise, responsible for enacting the congressional redistricting plan of a State. This section applies to any congressional redistricting plan enacted following the notice of apportionment transmitted to the President on April 26, 2021, regardless of the date of enactment by the State of the congressional redistricting plan. If any provision of this section, or the application of any such provision to any person or circumstance, is held to be unconstitutional, the remainder of this section, and the application of such provision to any other person or circumstance, shall not be affected by the holding.
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Sec. 5003
Criteria for redistricting
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