The Frequency of Redistricting in Nebraska and the Balance Between One Person, One Vote and Electoral Stability: How Often Is Too Often?

• Publication year: 2021
• Citation: Vol. 82

82 Nebraska L. Rev. 575. The Frequency of Redistricting in Nebraska and the Balance Between One Person, One Vote and Electoral Stability: How Often Is Too Often?

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David J. A. Bargen*

The Frequency of Redistricting in Nebraska and the Balance Between One Person, One Vote and Electoral Stability: How Often Is Too Often?

TABLE OF CONTENTS

I. Introduction ..................................................... 576
II. Case Progression ................................................. 579
A. Factual Background ............................................ 579
B. District Court Decision ....................................... 583
C. Nebraska Supreme Court Decision ............................... 586
III. Anaylsis ......................................................... 587
A. Overview of Nebraska Case Law ................................. 587
1. Preliminary Look at Section 32-553 in State ex
rel. Steinke v. Lautenbaugh ................................ 587
2. Meaning of "Most Recent Census Data"
Answered in Pelzer v. Bellevue ............................. 588
B. The Question of Frequency ..................................... 590

C. One-Person, One-Vote Standard: Reynolds v. Sims ............... 592
D. Federal Courts and the Frequency Question ..................... 593
E. Nebraska Constitutional Guidance .............................. 595
F. Other Statutory Guides: Redistricting Due to
Annexation .................................................... 599

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G. Potential Results: Ohio's Experience .......................... 601
IV. Implications ...................................................... 602
V. Conclusion ......................................................... 605

I. INTRODUCTION

The Nebraska Supreme Court established an important state electoral redistricting precedent in Chambers v. Lautenbaugh.(fn1) While political districts are generally redrawn following receipt by the state of new federal census figures compiled once every ten years, the court's treatment of state law in Chambers opens the door to more frequent redistricting of political subdivisions in order to ensure population numbers in those districts remain substantially equal between federal censuses. This necessarily means that districts may be redrawn using data that could be up to ten years old, depending on when a governing board undertakes to redraw districts. The court itself heralded the importance of its holding by ruling on what would otherwise have been a moot case.(fn2) Its reading of section 32-553 of the Nebraska Revised Statutes in connection with the holding is applicable to public officials who are responsible for redistricting political subdivisions.(fn3) Since the court's holding in Chambers could have wide-ranging applicability, it is important that election commissioners and other public officials responsible for redistricting in the state understand its implications.

The issues in Chambers implicate a larger policy consideration of balancing the need to maintain substantial population equality between electoral districts, and thus consistent voting power from one voter to the next, and the practical concern for at least temporary stability in the electoral process. On the one hand is the concern about

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making the process fair, and on the other is the consideration that voters generally relate to established boundaries and the officials representing them. There is also the concern that frequent redistricting can be used as a tool for partisan political gain by giving one group more advantageous territory than another. The frequency of redistricting, the age of population data used, and the proximity to an impending election are the important consideration to be made when undertaking this balancing.(fn4)

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The interjection of courts into what is traditionally a purely political process(fn5) means that the legal considerations will often be based on a number of political ones, with the most important legal ramification of Chambers being the power granted public officials responsible for redistricting. The court was faced with determining the meaning of the language of section 32-553, and held that the plain meaning of the statute does not limit the frequency of redistricting but gives public officials the (broad) power to ensure that the electoral districts of political subdivisions maintain substantial population equality. A narrow interpretation of the statute's language, which plausibly is owing of two possible meanings, would have involved scanning a wider legal landscape to place the language of the statute within a context that provides considerable support for limiting the frequency of redistricting.

Given policy interests in a stable electoral scheme, such as avoiding voter confusion and political manipulation, the court should have employed a narrow interpretation of the language of section 32-553. Given the wider legal and policy context within which the question of redistricting frequency arises, which includes the U.S. Supreme Court's decision in Reynolds v. Sims,(fn6) other federal court decisions, and the Nebraska Constitution, a narrow interpretation of section 32553 in Chamberswould likely have been a better conclusion.

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II. CASE PROGRESSION

A. Factual Background

In May 2000, Douglas County Election Commissioner Scott Lautenbaugh announced plans to redraw the Omaha city council districts in preparation for the primary and general elections in April and May of 2001 using the 1990 federal census data, which was the only census data available at that time.(fn7) Even though the 2000 census had just been completed, the data would not be available to Lautenbaugh until around March of 2001, after the primary and just weeks before the general election in May.(fn8) Going into the 2001 election cycle, Omaha's council districts had become considerably unequal in population, which Commissioner Lautenbaugh attributed largely to city annexations throughout the 1990s.(fn9) Even before the most recent annexations in 1999, District One had a population of 50,351, District Two had a population of 48,712, District Three had a population of 46,117, District Four had a population of 48,325, District Five had a population of 53,179, and District Six had a population of 68,577.(fn10) In 1999, a series of annexations added an additional estimated population of 13,750, mainly to Districts Five and Six.(fn11) Lautenbaugh highlighted the overall population disparity between the districts in an editorial to the Omaha World-Herald, noting that after annexations District Six had a population of 77,617 while District Three had a population of 45,117.(fn12)

Lautenbaugh's decision to redistrict was premised on his concern that leaving the districts unchanged for the 2001 city council election invited a lawsuit. The basis for such suit would be the "one-person, one-vote" principle established by the landmark United States Supreme Court decision in Reynolds v. Sims.(fn13) Reynolds primarily held that the Equal Protection Clause requires both houses in bicameral state legislatures be based on population distribution and not on geographical location. The general significance of Reynolds is that it mandates the equality of voters' power through the drawing of election districts. The Court stated, "[T]he Equal Protection Clause requires that a State make an honest and good faith effort to construct

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districts, in both houses of its legislature, as nearly of equal population as is practicable."(fn14) The Court also made it clear in Board of Estimate of City of New York v. Morris(fn15) that the one-person, one-vote standard applies not only to congressional and state legislative districting, but also to that of local governments. "Both state and local elections are subject to the general rule of population equality between electoral districts."(fn16) The idea is that the votes of individuals residing in a district with a population substantially larger than that of similar districts of a governing board are, in essence, diluted when compared to those of individuals in less populous districts.(fn17) According to Lautenbaugh, the situation in Omaha in 2000 was ripe for a suit based on Reynoldsif redistricting did not occur before the 2001 city council elections.

While redistricting is a tool for the provision of an equal franchise, it is also an effective tool of partisan politics.(fn18) Few issues a legislative body takes up cause more political wrangling and subsequent court challenges than redistricting.(fn19) Redistricting decisions are com

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monly politically motivated, particularly when governing bodies have the power to redistrict themselves.(fn20) Indeed, outright gerrymandering, the practice of drawing often odd-looking political districts in order to benefit one group over another in elections, has been a part of American politics since at least 1812 when the practice got its name in an election battle between Jeffersonians and the Federalists.(fn21) While Lautenbaugh was not a member of the Omaha City Council, he was harshly criticized and accused of blatant partisan political tinkering for his decision to redistrict right before the 2001 city council election.

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Some council members accused Lautenbaugh of political shenanigans since both Lautenbaugh and then Omaha mayor Hal Daub were active Republicans, and council members had been "none too kind" to Daub.(fn22) Lautenbaugh flatly denied any political motivation behind his plan or any desire to gerrymander anyone off the council.(fn23)

In early June 2000, State Senator Ernie Chambers, representing Nebraska's Eleventh Legislative District (which includes much of north Omaha and the area encompassed by Omaha city council District Two), threatened to bring suit to prevent Lautenbaugh from redrawing the city council districts before the...