[EL] Refreshing the Evenwel question about state practice: What about Nebraska?

[Marty Lederman]

I'm circling back to this question that I asked a few weeks ago (see
below).  Several listmembers sent me helpful information in response to my
earlier query, all of which appeared to confirm the standard narrative,
namely:

-- All 50 states do -- and have since *Wesberry* -- use *total population*
for drawing districts for the federal House of Representatives.

-- All 50 states also use *total pop* for districting of state legislative
seats *except *that Hawaii and Kansas both attempt to exclude *nonresident
military personnel and university students* (by asking the military
installations and universities to tell central authorities their number of
nonresidents)--most of whom are presumably counted in the jurisdiction
where they *are* residents.


I assumed these were the basic facts.  But then Texas included this
striking footnote in its merits brief last week (a brief that is very
provocative for other reasons, btw), invoking the laws of eight additional
states:

As the appendix to this brief demonstrates, a clear majority of States rely
on total population in apportioning state legislative districts. Only a
small minority of States - California, Delaware, Hawaii, Kansas, Maine,
Maryland, Nebraska, New Hampshire, New York, and Washington - have
constitutional or statutory provisions that exclude particular groups from
the apportionment base. These provisions variously authorize the exclusion
of *aliens*, nonpermanent residents, nonresident military personnel, and
inmates who were not state residents prior to incarceration.


Of these, Maine, New York and, especially, Nebraska are (potentially) the
most interesting, because they have constitutional provisions dealing with
aliens.  I'll discuss them below.  As for the other states, the Texas
appendix reveals the following:

*California, Delaware, Maryland, New York and Washington *have code or
constitutional provisions concerning *nonresident incarcerated persons:*

A provision of the *California *election code (Cal. Elec. Code § 21003)
provides:


[T]he Legislature hereby requests the Citizens Redistricting Commission to
deem each incarcerated person as residing at his or her last known place of
residence, rather than at the institution of his or her incarceration, and
to utilize the information furnished to it pursuant to subdivision (a) in
carrying out its redistricting responsibilities under Article XXI of the
California Constitution. The Legislature also requests the commission to …
(2) Deem an inmate in state custody in a facility within California for
whom the last known place of residence is either outside California or
cannot be determined, or an inmate in federal custody in a facility within
California, to reside at an unknown geographical location in the state and
exclude the inmate from the population count for any district, ward, or
precinct.


A provision of the *Delaware *code (Del. Code Ann. tit. 29, § 804A)
provides:

The General Assembly, in determining the reapportionment and redistricting
for the State, applying the criteria set forth in § 804 of this title, and
using the official reporting of the federal decennial census as set forth
in § 805 of this title, shall not count as part of the population in a
given district boundary any incarcerated individual who: (1) Was
incarcerated in a state or federal correctional facility, as determined by
the decennial census; and (2) Was not a resident of the State before the
person's incarceration.


A provision of the *Maryland *code (Md. Code Ann., State Gov't § 2-2A-01)
provides:

The population count used after each decennial census for the purpose of
creating the legislative districting plan for the General Assembly: (1) may
not include individuals who: (i) were incarcerated in State or federal
correctional facilities, as determined by the decennial census; and (ii)
were not residents of the State before their incarceration; and (2) shall
count individuals incarcerated in the State or federal correctional
facilities, as determined by the decennial census, at their last known
residence before incarceration if the individuals were residents of the
State.

A provision of the *New York *code (N.Y. Elec. Law § 83-m) provides that:

Until such time as the United States bureau of the census shall implement a
policy of reporting each such incarcerated person at such person's
residential address prior to incarceration, the task force shall use such
data to develop a database in which all incarcerated persons shall be,
where possible, allocated for redistricting purposes, such that each
geographic unit reflects incarcerated populations at their respective
residential addresses prior to incarceration rather than at the addresses
of such correctional facilities. For all incarcerated persons whose
residential address prior to incarceration was outside of the state, or for
whom the task force cannot identify their prior residential address, and
for all persons confined in a federal correctional facility on census day,
the task force shall consider those persons to have been counted at an
address unknown and persons at such unknown address shall not be included
in such data set created pursuant to this paragraph.

A provision of the *Washington *Constitution (art. II, § 43(5)) similarly
states that "[e]ach district shall contain a population, excluding
nonresident military personnel, as nearly equal as practicable to the
population of any other district."

A bit more broadly -- but still focused on *nonresidents*--the *New
Hampshire* Constitution provides (N.H. Const. pt. 2, art. 9-a) that for
districting of its State House seats, "[t]he general court shall have the
power to provide by statute for making suitable adjustments to the general
census of the inhabitants of the state taken by the authority of the United
States or of this state on account of *non-residents temporarily residing
in this state*."

I don't know if the N.H. legislature has ever done what its constitution
allows, but in 1971 the N.H. Supreme Court Justices issued an advisory
opinion to the N.H. House concluding that, per *Burns*, the adjustment of
federal census figures, for purposes of reapportionment, by exclusion of
nonresidents who were *military personnel* stationed at base within the
state or *students attending a collage or university* within the state
would be constitutionally permissible, *assuming that military personnel
and students who had in fact become bona fide residents would not be
excluded on that basis *(but further held that adjustment of federal census
figures by increasing or decreasing such figures to reflect the change
estimated by the office of planning to have taken place in particular towns
or wards from the date of the census to the date of such reapportionment or
districting would be violative of the state constitutional requirement that
apportionment be based upon a general census).

* * *
That leaves constitutional provisions from* Maine, New York and Nebraska.*

As I read them (I'm not sure if this is right), the Maine and New York
constitutional provisions each provide for the exclusion of "aliens" or
"foreigners not naturalized" in *establishing the mean number of residents
for districting*, but do not require that aliens be excluded when counting
the total population in each district.

The *Maine Constitution *(art. IV, pt. 1, § 2) provides that:

The number of Representatives shall be divided into the number of
inhabitants of the State *exclusive of foreigners not naturalized*
according to the latest Federal Decennial Census or a State Census
previously ordered by the Legislature to coincide with the Federal
Decennial Census, *to determine a mean population figure* for each
Representative District.

(Art. IV, pt. 2 of the Maine Constitution then provides that Senate
districting shall use the same “method” as House districting.)

To similar effect, the *New York Constitution *(art. III, § 5) provides
that:

The quotient obtained by dividing the whole number of inhabitants of the
state, *excluding aliens*, by the number of members of assembly, shall be
the *ratio* for apportionment.

(The next provision (art. III, § 5-a) then states that "[f]or the purpose
of apportioning senate and assembly districts pursuant to the foregoing
provisions of this article, the term “inhabitants, excluding aliens” shall
mean the whole number of persons.")

To similar effect for the New York Senate, the state Constitution provides
(art. III, § 4(d)) that:

The ratio for apportioning senators shall always be obtained by dividing
the number of inhabitants, *excluding aliens*, by fifty.

Yet when it comes to the actual apportionment for redistricting, the New
York Constitution and laws appear to prescribe use of *total population*:

To the extent practicable, districts shall contain as nearly as may be an
equal number of *inhabitants*. (N.Y. Const. art. III, § 4(c)(2).)

The assembly shall consist of one hundred fifty members chosen from the
districts described within and apportioned among the counties on the basis
of the number of *inhabitants* of the state based on the Federal Census of
two thousand ten ….  (N.Y. State Law § 120.)

The senate shall consist of sixty-three members chosen from the districts
described within and apportioned among the counties on the basis of the
number of *inhabitants* of the state based on the Federal Census of two
thousand ten, as adjusted pursuant to the provisions of part XX of chapter
fifty-seven of the laws of two thousand ten.  (N.Y. State Law § 123.)


That leaves, most intriguingly, *Nebraska*.  Article III, section 5 of the
Nebraska Constitution provides:

The Legislature shall by law determine the number of members to be elected
and divide the state into legislative districts.  In the creation of such
districts, any county that contains population sufficient to entitle it to
two or more members of the Legislature shall be divided into separate and
distinct legislative districts, as nearly equal in population as may be and
composed of contiguous and compact territory.  One member of the
Legislature shall be elected from each such district.  The basis of
apportionment shall be the population *excluding aliens*, as shown by the
next preceding federal census.

A 1934 reported decision -- *Rogers v. Morgan*, 256 U.S. 1, 2 (Neb. 1934)
-- suggests that Nebraska did, indeed, exclude aliens from its districting
numbers after the 1930 census.  But I have no idea what the Nebraska
practice has been post-*Reynolds/Burns*, nor how (if at all) Nebraska
counts "aliens."

Anyone have further information about Nebraska?

Is Texas's account of state law otherwise accurate?


On Tue, Aug 4, 2015 at 12:55 PM, Marty Lederman <lederman.marty at gmail.com>
wrote:

> I apologize if the answer to this is somewhere in the pleadings, but I
> haven't run across it and was hoping some of you would know:
>
> How many, if any, states currently use anything *other than* total
> population (census #s) to draw roughly equal districts for election to
> state office?  To draw congressional districts?  Has the practice changed
> at all over the past half-century, since *Wesberry*/*Reynolds*/*Burns*?
>
> Thanks in advance.
>
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