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

[Jeff Wice]

New York's constitution was amended to use total population as the base for
redistricting in 1970. The old language is inoperative.
Jeff Wice

On Tue, Sep 29, 2015 at 8:06 AM, Marty Lederman <lederman.marty at gmail.com>
wrote:
The federal government's brief includes the following:
To our knowledge, all States use total population data collected through the
federal census to measure their compliance with constitutional requirements for
both congressional and state legislative redistricting. See, e.g., Nat'l Conf.
of State Legislatures, 2010 NCSL Congressional and State Legislative Redistricting Deviation Table , 
[http://www.ncsl.org/research/redistricting/2010-ncsl-redistricting-deviation-table.aspx] 
http://www.ncsl.org/research/redistricting/2010-ncsl-redistricting-deviation-table.aspx
[http://www.ncsl.org/research/redistricting/2010-ncsl-redistricting-deviation-table.aspx] (last visited Sept. 24, 2015). [FN: Hawaii and Kansas seek to adjust census
data to exclude certain non-permanent residents. See Haw. Const. Art. IV, §§ 4,
6; Kan. Const. Art. 10, § 1(a). California, Delaware, New York, and Maryland
seek to adjust for prisoners' last known residence rather than where they are
incarcerated. See Cal. Election Code § 21003 (West Supp. 2015) (effective 2020);
Del. Code Ann. tit. 29, § 804A (2015) (effective 2020); N.Y. Legis. Law §
83-m(13) (McKinney 2015); Md. Code Ann., State Gov't, § 2-2A-01 (LexisNexis
2014). A list of the known adjustments to census data in state legislative
redistricting is available at Redistricting Data , [http://www.census.gov/rdo/data/113th_congressional_and_] http://www.census.gov/rdo/data/113th_congressional_and_
[http://www.census.gov/rdo/data/113th_congressional_and_] 2012_state_legislative_district_plans.html (last visited Sept. 24, 2015).
The appendix to Texas's brief indicates that the constitutions of Maine,
Nebraska, and New York appear to exclude aliens from the apportionment base for
state legislative districts. See Tex. Br. App. 16a, 23a, 28a. None of those
provisions is operational as written. See In re 1983 Legislative Apportionment
of House, Senate, and Congressional Districts, 439 A.2d 819, 827-829 (Me. 1983);
Michael Shepherd, Maine Commission Unanimously Approves Redistricting, Kennebec
J., May 31, 2013, http:// 
[http://www.pressherald.com/2013/05/31/bipartisan-panel-approves-maine-legislative-redistricting/] 
www.pressherald.com/2013/05/31/bipartisan-panel-approves-maine-legislative-redistricting/
[http://www.pressherald.com/2013/05/31/bipartisan-panel-approves-maine-legislative-redistricting/] (last visited, Sept. 24, 2015) (commission drew current legislative districts
based on total population data from the 2010 census); L.R. 102, 102d Leg., 1st
Sess. (Neb. 2011) (directing commission to use population data from the 2010
census); N.Y. Const. Art. III, § 5-a (nullifying constitutional provision
excluding aliens from apportionment base).
On Mon, Sep 28, 2015 at 11:52 AM, Marty Lederman < lederman.marty at gmail.com [lederman.marty at gmail.com] > wrote:
The brief for New York and 20 other states ( 
[https://www.brennancenter.org/sites/default/files/legal-work/Evenwel_Amicus%20for%2021%20States.pdf] 
https://www.brennancenter.org/sites/default/files/legal-work/Evenwel_Amicus%20for%2021%20States.pdf
[https://www.brennancenter.org/sites/default/files/legal-work/Evenwel_Amicus%20for%2021%20States.pdf] ) confirms that some states used metrics other than total population --
including NY's own exclusion of noncitizens, and Tennessee's exclusion of
non-qualified voters--even after Reynolds and Burns , but that the practice fell into disuse as the Census numbers on total
residents became much more reliable than any count based on other metrics. As
for Nebraska (and Maine), the brief says simply (and without citation) that
"[b]ecause the Census does not provide any counts of noncitizens, these States
as a matter of practice redistrict based on the Census’s enumeration of total
population."
On Sun, Sep 27, 2015 at 8:56 PM, Marty Lederman < lederman.marty at gmail.com [lederman.marty at gmail.com] > wrote:
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] 
http://www.brennancenter.org/sites/default/files/analysis/Apportionment%20of%20State%20Legislatures%201776-1920.pdf
[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 [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] http://www.brennancenter.org/analysis/apportionment-statelegislatures-1776-1920
[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 [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 [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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