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

[Marty Lederman]

The moderators will not allow me to attach the Texas brief, but it's
available on Westlaw.

On Wed, Sep 23, 2015 at 10:55 AM, Marty Lederman <lederman.marty at gmail.com>
wrote:

> I'm attaching it -- let me know if it doesn't come through.
>
> On Wed, Sep 23, 2015 at 10:50 AM, Richard Winger <richardwinger at yahoo.com>
> wrote:
>
>> Is there any easy way for us to read the state's brief?  Has it already
>> been circulated on the election-law list? I would love to read it.
>>
>> Richard Winger 415-922-9779 PO Box 470296, San Francisco Ca 94147
>>
>> ------------------------------
>> *From:* Marty Lederman <lederman.marty at gmail.com>
>> *To:* Rick Hasen <rhasen at law.uci.edu>
>> *Cc:* "law-election at UCI.edu" <law-election at uci.edu>
>> *Sent:* Wednesday, September 23, 2015 7:41 AM
>> *Subject:* [EL] Refreshing the Evenwel question about state practice:
>> What about Nebraska?
>>
>> 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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>>
>
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