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Wednesday, February 20, 2013

Congressional Redistricting and the Voting Rights Act: A Legal Overview

L. Paige Whitaker
Legislative Attorney

The Constitution requires a count of the U.S. population every 10 years. Based on the census, the number of seats in the House of Representatives is reapportioned among the states. Thus, at least every 10 years, in response to changes in the number of Representatives apportioned to it or to shifts in its population, each state is required to draw new boundaries for its congressional districts. Although each state has its own process for redistricting, congressional districts must conform to a number of constitutional and federal statutory standards, including the Voting Rights Act (VRA) of 1965, as amended.

The VRA was enacted under Congress’s authority to enforce the 15
th Amendment, which provides that the right of citizens to vote shall not be denied or abridged on account of race, color, or previous servitude. In particular, Section 2 of the VRA prohibits the use of any voting qualification or practice—including the drawing of congressional redistricting plans—that results in the denial or abridgement of the right to vote based on race, color, or membership in a language minority. The statute further provides that a violation is established if, based on the totality of circumstances, it is shown that political processes are not equally open to members of a racial or language minority group in that its members have less opportunity than other members of the electorate to participate and to elect representatives of choice. In decisions including Thornburg v. Gingles and Bartlett v. Strickland, the Supreme Court further interpreted the requirements of Section 2.

Section 5 of the VRA requires certain covered jurisdictions—based on a formula set forth in Section 4(b)—to “preclear” their congressional redistricting plans with either the Department of Justice or the U.S. District Court for the District of Columbia before implementation. In order to be granted preclearance, the covered jurisdiction has the burden of proving that the proposed voting change neither has the purpose, nor will it have the effect, of denying or abridging the right to vote on account of race or color, or membership in a language minority group. On February 27, 2013, the U.S. Supreme Court will hear a case challenging the constitutionality of the VRA’s preclearance requirement. In Shelby County, Alabama v. Holder, the Court will consider whether Congress’s decision in 2006 to reauthorize Section 5 of the VRA under the preexisting coverage formula contained in Section 4(b) exceeded its authority under the 14
th and 15th Amendments, thereby violating the 10th Amendment and Article IV of the U.S. Constitution. The Court will likely issue its decision by the end of June.

In the 113
th Congress, legislation has been introduced that would establish certain standards and requirements for congressional redistricting, including identical bills H.R. 223 and H.R. 278, the “John Tanner Fairness and Independence in Redistricting Act,” and H.R. 337, the “Redistricting Transparency Act of 2013.”

Date of Report: January 31, 2013
Number of Pages: 14
Order Number: R42482
Price: $29.95

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