Sen. John Murante's plan requiring lawmakers to adhere to the Nebraska Constitution in redrawing legislative boundaries in 2021 slid off the Legislature's agenda Monday after minimal debate.
As the Legislature's 60-day session nears its end, Murante pulled his bill (LB1115) from the agenda to allow debate on other matters Monday, but not before voicing his concerns over a largely ignored provision of the state's governing document.
Adopted after a state constitutional convention in 1920 on the heels of World War I — and as an influx of immigrants settled in Nebraska — Article III, Section 5 reads: “The basis of apportionment shall be the population excluding aliens, as shown by the next preceding federal census.”
Murante told lawmakers that redistricting committees appeared to have minded that principle in the past, or at least until the 1991 process. Since then, he said, committees in 2001 and 2011 had forgotten or ignored the provision following new census counts.
“No longer will the excuse be acceptable that we were unaware this provision existed,” the Gretna senator said during debate Monday. His bill would have removed the estimated number of non-U.S. citizens living in the state, according to the Census Bureau, from being counted for redistricting purposes.
The same gallery of opponents to Murante's voter ID proposal earlier this month also rose to argue against LB1115.
Lincoln Sen. Adam Morfeld said the Equal Protection Clause under the Fourteenth Amendment of the U.S. Constitution superseded Nebraska's apportionment provision.
Morfeld illustrated his point by noting a decision by the U.S. Supreme Court declaring same-sex marriage a guaranteed right under federal law superseded a 2000 ballot initiative making it unconstitutional in Nebraska.
Sen. Tony Vargas said his south Omaha district slicing across eastern Douglas County — a county where more than 34,000 noncitizens were living, according to the 2010 Census — would be reshuffled into other districts if Murante's bill were passed into law.
Vargas said LB1115 could lead to Nebraska removing other population groups within the state from being considered for redistricting purposes, such as children under the age of 18 who cannot vote.
Sen. Carol Blood of Bellevue said foreign-born members of the military, their spouses or children living in the areas around Offutt Air Force Base could also be ignored.
Sen. Anna Wishart told a story of knocking on doors in her southwest Lincoln district when an Iraqi immigrant who had fought alongside the American military before settling in Nebraska asked her about his place in the world.
Wishart told the man he belonged in Lincoln and in Nebraska, but she was troubled that under Murante's bill, he would not be counted for representation.
"He's not a citizen — yet — but I would definitely consider him an American," Wishart said.
According to a footnote in a 2016 Supreme Court decision argued by lawyer-senators Monday, Nebraska is one of 10 states that "authorize the removal of certain groups from the total population apportionment base."
The court noted, however, that Nebraska's constitutional provision was not "operational as written," giving state lawmakers flexibility to adopt their own guidelines for the purposes of redistricting.
Lincoln Sen. Mike Hilgers said that flexibility would allow the state to adopt LB1115 for the purposes of redistricting state and local political seats without fear of violating the U.S. Constitution.
Recent Legislatures have swung the other way.
In 2011, the Legislature approved eight general rules for the Redistricting Committee to follow, basing the process on the "population data" generated by the 2010 Census to define boundaries "easily identifiable and understandable to voters."
The committee was also tasked with following county lines "whenever practicable," as well as keeping districts within 10 percent of the ideal population apportion prescribed by the nation's highest court.
The guidelines also prohibited senators from giving consideration to "demographic information other than population figures," or setting boundaries "which would result in the unlawful dilution of the voting strength of any minority population."
Murante said he believed a legal challenge could be made to Nebraska's upcoming redistricting effort if the state continues to ignore Article III, Section 5 of its constitution.
"The constitution is plain as day," he said. "It says what it says."
After a lunch break, however, Speaker Jim Scheer announced Murante had agreed to let debate move forward on other bills.
With Monday being the final day for bills to advance from general file, and with the Legislature scheduled to adjourn April 18, Murante's redistricting proposal died on the floor.