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

[Marty Lederman]

Thanks to the Brennan Center for fixing the link to the Keith/Perry study:

http://www.brennancenter.org/sites/default/files/analysis/Apportionment%20of%20State%20Legislatures%201776-1920.pdf

Here's what it says about Maine and Nebraska:

The constitutions of Maine and Nebraska call for exclusion of “foreigners
not naturalized” and “aliens” respectively, but both states have confirmed
to the authors that they apportion on U.S. Census data without any
exclusions. [FN: Telephone Interview with Nebraska Legislative Research
Office (Sept. 22, 2015); Telephone Interview with Maine State Law and
Legislative Reference Library (Sept. 24, 2015).]

More broadly, the study shows that although there's been a decisive trend
toward use of total population (probably because of the census), there are
numerous examples of states using other metrics before and after
ratification of the Fourteenth Amendment.

In light of that, I think it would be especially difficult to argue that
the Constitution *requires *use of total population (a notion that also
would be difficult to reconcile with language in *Reynolds *and *Burns
*affirming
state discretion to choose the population base).  How many, if any, of the
amicus briefs are arguing that total population *must* be equalized?

What is much easier to argue -- and what I know several of the briefs do
argue -- is that if a state legislature were now to amend its laws to
exclude noncitizens, or aliens, or all persons not eligible to vote, that
would certainly raise substantial constitutional questions (including but
not necessarily limited to "one-person/one-vote")--questions that cannot be
addressed in the abstract, or categorically, without knowing much more
about the specific circumstances, and the particular reason why the
legislature chose to so deviate from the modern norm.  Therefore, these
briefs argue, the Court should not reach out to opine on that speculative
hypothetical legislature, but should instead address only whether use of
total population--the virtually unbroken contemporary practice--is
*permissible*.



On Sun, Sep 27, 2015 at 2:49 PM, Marty Lederman <lederman.marty at gmail.com>
wrote:

> Not very many of the bottom-side briefs have yet been posted, so I don't
> know how many parties have addressed this issue raised in the Texas brief
> -- in particular, whether and when Nebraska excluded aliens from its
> district counts.
>
> The Brennan Center brief does include this footnote:
>
> New York from 1821-1969 and North Carolina from 1868-1968 both excluded
> aliens. Maine (1820) and Nebraska (1920), in theory, still do but, in
> practice, no longer do.  Douglas Keith and Eric Petry, *Apportionment of
> State Legislatures, 1776-1920*, available at
>
> http://www.brennancenter.org/analysis/apportionment-statelegislatures-1776-1920;
> Robert B. McKay, Reapportionment: The Law and Politics of Equal
> Representation 336, 366, 381, 391 (1965).
>
>
> I actually don't read the Maine Constitution to exclude aliens from any
> particular district count (see my earlier post, below); but perhaps I'm
> wrong about that.
>
> I'm more interested, however, in when and why those four states stopped
> excluding aliens -- was it because they concluded it was unconstitutional,
> or simply because the data were not available?  Presumably, the answers
> might be in the Keith & Perry study that the BC cites (although the title
> of that study makes it sound as if it ends in 1920)--but when I click on
> the link I get a message reading "Access denied.  You are not authorized to
> access this page."  (Let's hope that the Justices and their clerks, and the
> parties, are authorized to read the study.)
>
>
>
> On Wed, Sep 23, 2015 at 10:41 AM, Marty Lederman <lederman.marty at gmail.com
> > wrote:
>
>> 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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