Voters in limbo: Who’s in 1st? What’s in 2nd? And, 3rd, I don’t know which House member to call

WAHOO, Nebraska — Residents of this Saunders County town 45 miles west of Omaha and 30 miles north of Lincoln are living in something of a congressional limbo these days.

Until early next January, Congress considers them part of Nebraska’s 1st Congressional District, as they have been since the 1960s. But they have had no say in who represents them in Congress from now until then.

Meanwhile, just to the east in Sarpy County, residents in Papillion and La Vista got to vote in the June 28 special election to choose the 1st District representative through the end of the year. 

But Papillion and La Vista residents can’t get help from newly elected U.S. Rep. Mike Flood with any federal issues, because a House rule considers them still part of the 2nd Congressional District.

Confused yet? You’re not alone. 

This congressional conundrum was created when the once-a-decade redrawing of election district boundaries butted up against the unexpected resignation of a Nebraska congressman this spring. 

More than 75,000 Nebraskans got moved out of the state’s 1st District, which includes the City of Lincoln, into either the Omaha-based 2nd District or Nebraska’s sprawling, largely rural 3rd District. 

Then there are the nearly 70,000 voters, primarily from Sarpy County, who were moved from the 2nd District into the 1st District. 

Voters confused

The changes have confused many voters.

Wahoo Mayor Jerry Johnson, a former state senator, said he talked to a woman at a funeral in Cedar Bluffs, another Saunders County town, who hadn’t been able to find her polling place for the special election. She asked Johnson if the county had moved them. He told her that since they were no longer in the 1st District, they didn’t get to vote in the election.

“She was embarrassed, but she had no reason to be,” he said. 

“It’s been weird,” said Nora Sandine, chair of the Sarpy Republican Party. “It’s been confusing, and it’s been kind of stressful for everyone. Not just for the people campaigning, but also for the voters.”

Sandine and Charlene Ligon, chair of the Sarpy Democratic Party, both said they’ve advised people who need help from a member of Congress to call whichever office they like and ask who is allowed to help them. 

Timing made things worse

Few could have foreseen the problems last fall, when the Legislature adopted new district boundaries for 2022. The changes went into effect beginning with this year’s May primary and November general elections. 

Then 1st District Rep. Jeff Fortenberry, R-Neb., was convicted of three felonies and resigned at the end of March. That triggered the need for a special election, which hadn’t happened in Nebraska since 1951.

Fortenberry’s resignation came too late to hold the special election as part of the May primary, because ballots had already been printed and sent out. But the resignation came too early, under state law, to wait for the November election to fill the seat for the rest of the year.

Nebraska law requires a special election within 90 days of a House resignation or death that occurs before Aug. 1. But Nebraska’s redistricting law required election officials to use the new district maps without taking the possibility of a special election into account. 

The combined result changed the House district boundaries in a way that left tens of thousands of voters in no-man’s land, including residents in parts of Saunders, Sarpy, Burt, Otoe, Thurston, Dixon, Washington and Polk Counties.  

Should lawmakers act?

MaryLee Moulton, president of the League of Women Voters of Nebraska, said the odds of another resignation or death during a redistricting year are low. She called it a “unicorn event.”

But she said she and her members will reach out to state lawmakers about potential solutions. 

“You feel terrible,” Moulton said. “They certainly weren’t trying to disenfranchise people. It was an anomaly.”

State Sen. Lou Ann Linehan of Omaha said Friday that the idea of a special election was not on lawmakers’ radar when they drew the new maps in September 2021.

Few considered Fortenberry’s seat in jeopardy, she said, nor did they have any hint that he might resign. Federal prosecutors charged Fortenberry in October, weeks after the maps became law. Nebraska hadn’t held a special election in decades.

“Nobody mentioned any of these possibilities,” Linehan said. “It was never part of the discussion.”

Moving forward, she said, she could see a state senator proposing a change that addresses special election boundaries when new districts are first being used.

“I could see somebody either in Sarpy County or Saunders County bringing a bill that said this shouldn’t happen again,” she said.

No matter how unusual the occurrence, the possibility exists that a member of Congress might quit, whether because of wrongdoing, family crises, a presidential appointment or the decision to take a private-sector job, Linehan said. Then there’s the potential for accidents, illnesses and deaths. 

The Legislature last addressed House vacancies after the 2004 resignation of longtime Rep. Doug Bereuter, who was not replaced until the next general election. Lawmakers later adopted the current process, which clarifies if and when a special election should be held to replace a member who resigns or dies while in office.

House rules embrace old boundaries

The changes have also prompted confusion about which House member can provide constituent services in which areas. House rules only allow members to spend federal tax dollars on people who lived in their congressional district as configured during the most recent general election. In this case, that means the 2020 election. 

Second District Rep. Don Bacon’s office shared a letter with the Nebraska Examiner from House administrators stating, “The mere fact that a state may have taken action to implement new congressional districts does not disturb this rule.”

Some Nebraska election experts argue that the 2020 district boundaries ceased to exist when Gov. Pete Ricketts signed the new redistricting law last September. 

Bacon’s and Flood’s offices have both fielded calls from people trying to figure out who represents them. “Some constituents are rightfully confused as to where they should direct their requests,” Flood’s staff said. Callers are directed to the correct House office or to the offices of U.S. Sens. Deb Fischer or Ben Sasse.

Rep. Adrian Smith represents the 3rd District, which in recent decades has seen the largest geographic changes in redistricting. As the Omaha and Lincoln areas have grown in population, the 1st and 2nd Districts have shrunk geographically, while the 3rd has grown — now stretching like a Pac-Man from western Nebraska to northeast and southeast Nebraska, with space sliced out for the 1st District. 

Smith’s staff said his office has received calls from non-constituents for years “who are unsure of the best place to reach out for assistance.”

“Given the current discrepancies between when the State of Nebraska recognizes the new congressional boundaries and when Congress does, the office is working closely with Senators Fischer and Sasse to ensure all Nebraskans are appropriately served,” they said.

‘Unconstitutional’ or ‘weird law?’

John Cartier, who until recently served as voting rights director for voter advocacy group Civic Nebraska, told CQ-Roll Call in early July he understood the difficulties of switching maps but said not letting people vote for their representatives is “unconstitutional.”

University of Nebraska-Lincoln political scientist John Hibbing said redistricting is confusing enough for voters — without a special election thrown in. Nebraska’s law governing when and how to hold special congressional elections makes it worse, he said.

Many other states, when faced with a vacancy late in the election cycle, leave such seats open until the next regularly scheduled election, Hibbing said. 

“It’s a weird law, and it should be changed,” Hibbing said. “There’s no reason to go through that rigamarole for a few months.”

Election observers have also suggested another possible solution: upgrading election technology to let the state and counties more easily switch district boundaries back to the previous maps. Other states, including California and Texas, have held special elections using previous House district boundaries after having passed new maps in redistricting.

But Nebraska election officials have stressed the practical challenges of reprogramming the state’s county-by-county voter files in time for a special election with the old maps after a primary has been held using the new ones. They say the process is manual, not automatic.

Campaigning confuses, too

Another factor confusing voters is that congressional candidates have been campaigning for months in the newly drawn districts, both before and after the special election. 

For example, Bacon, a Republican, and his Democratic opponent in the 2nd District race this fall, State Sen. Tony Vargas, spent time last week at the Saunders County Fair. 

In the 1st District race, Republican Flood and his opponent, Democratic State Sen. Patty Pansing Brooks, have been holding campaign events in Sarpy County strongholds such as Papillion and La Vista. 

Normalcy is coming

Theresa Klein, executive director of the Wahoo Chamber of Commerce, said, “A lot of people would’ve liked to vote” in the special election. For some, she said, “A redistricting like this is disconcerting.”

Nebraska Secretary of State Bob Evnen said the state expects to be “back to normal in the November election.” Every Nebraskan is in a congressional district, he said, and every resident has someone representing them in Congress.

“This is the first special election for Congress that we’ve had in about 70 years,” Evnen said. “Coincidentally, it occurred in the midst of redistricting, which takes place once in 10 years. So, the context of this special election was very, very rare.”

Kate DeCoste, who owns a photo studio in Wahoo, said it was odd to “not be able to vote for someone who’s representing you.” She is looking forward to voting in a new House race in November.

“I can’t do anything about what happened with the rezoning and that stuff,” she said. “I’m looking forward instead of backward.”

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