Nebraska quirk used new map to fill House vacancy last month

House rules won’t let winner represent some voters until 2023

Nebraska state Sen. Mike Flood won the special election to fill the open 1st District seat in the House. (Screenshot/YouTube/Mike Flood for Congress)
Nebraska state Sen. Mike Flood won the special election to fill the open 1st District seat in the House. (Screenshot/YouTube/Mike Flood for Congress)
Posted July 6, 2022 at 6:15am

Some voters in last month’s special election to replace former Rep. Jeff Fortenberry in Nebraska’s 1st District won’t be represented by the Republican who won, Mike Flood, until January — and only if Flood wins again in November. 

Meanwhile, it’s an open question whether anyone, besides the state’s two senators, represents them in Congress for the remainder of this year.

That’s because the Cornhusker State’s redistricting law called for using new district maps enacted last year for the June 28 special election to fill the remainder of Fortenberry’s term. But congressional rules define lawmakers’ constituents for the remainder of this year using the maps that were in place for the 2020 election, when Fortenberry last won. 

Flood is running in November for a full term, and will face the same Democratic opponent, state Sen. Patty Pansing Brooks, that he beat on June 28. Both Flood and Pansing Brooks won spots on the November ballot in a May 10 primary.

If Flood loses in November, some of the people in his district won’t ever have him be the person who represents their voice in Washington. 

Special elections to fill vacancies in California, Florida and Texas this year were all run using the 2020 maps. In California, the special election to fill the vacancy in the 22nd District was run on the same day last month as the primary to pick candidates for the November ballot in a revamped district.  

Nebraska hasn’t needed to hold a special election in decades, and opted to stick with the new district lines to avoid confusion. 

“It’s a weird combination,” said Wayne Bena, Nebraska’s deputy secretary of state for elections. 

“I know this happens maybe a little more often in other states, but this is the first time since ‘51 that we've had to actually have one of these, and it just so happened to happen during the redistricting year.”

Fortenberry resigned from the House in March after he was convicted of lying to authorities about illegal campaign contributions, triggering a state law that requires a special election to be held within 90 days. The tight window meant state officials had to tiptoe around the May 10 primary, a date too soon after Fortenberry resigned to get ballots delivered and returned from active duty or overseas voters. Fortenberry’s name remained on the primary ballot despite his resignation, and he got almost 12 percent of the vote in the primary.

Use of the new districts in the special election became Twitter fodder after FiveThirtyEight.com reporter Nathaniel Rakich spotted the oddity. It was called “bizarre and undemocratic” by the left-leaning Daily Kos, though there wasn’t as much attention in local media. 

For John Cartier, who heads up voting rights for the nonpartisan group Civic Nebraska, the whole episode doesn’t square with what the founders intended. 

“It certainly has not been something that’s challenged before in Nebraska, but folks not being represented in an election — that’s just blatantly unconstitutional,” he said. 

But Cartier conceded that despite there being scores of disenfranchised voters, the rapid election timetable was difficult to overcome. 

“The practical reality is how are you going to get a lawsuit together to challenge it within that time frame?” he said. “It's tough to see really any recourse for voters in those districts.”

Bena defended the state’s decision, arguing that what happened this year is similar to previous redistricting cycles, and if he was a state elections official in 2012 it would’ve been handled the same way. One of the only differences this year was the redistricting process itself happened later because delayed census results put every state’s timetable behind schedule. 

“Both the campaigns and everyone was in the know about what we were doing,” he said. “And everybody was in agreement that this was what we had to do based upon our laws.”

Where am I?

The way officials redrew the three Nebraska House seats made the state’s 2nd District, centered on Omaha, safer for Republican Rep. Don Bacon by moving about 10 percent of the population in his old district into Fortenberry’s 1st District. Bacon had been a prime target for Democrats in previous cycles, and won reelection with less than 51 percent of the vote in 2020, when Fortenberry got nearly 60 percent.

The most significant changes included moving several counties on the outer edges of the 1st District and adding them to the 3rd District represented by GOP Rep. Adrian Smith. Before redistricting, Bacon’s 2nd District included Omaha’s Douglas County and a portion of Sarpy County to the South. The new district still encompasses Douglas, but now includes Saunders County to the West and a smaller portion of Sarpy.

The shuffle has meant some confusion for constituents who have sought guidance from officials in state, local and congressional offices to find out whether they were eligible to vote in the special election or who they would go to for constituent services.

Since Fortenberry’s seat became vacant, his office has been under the supervision of the House Clerk, which meant staffers could not take positions on policy and constituents had to go elsewhere to express opinions on legislation under consideration. 

The office could continue conducting pending casework, helping people in the district navigate federal government agencies running programs such as Social Security and Medicare.

Smith’s office has gotten some calls from people not sure where to turn for assistance, but that happened even prior to this year’s redistricting, a spokesperson said. 

Congress’ rules do not allow offices to spend any funds outside the districts recognized by Congress, so Flood will not be able to send mass mailings or robocalls to people in the new parts of the district, said Danielle Jensen, spokeswoman for Bacon. 

She said their office has gotten a handful of calls from people unsure where to go for help, and for the people falling into those confusing nooks and crannies, House members can still rely on two elected federal officials capable of administering services statewide.  

“We’ve just been referring them to the senators’ offices,” she said. “Because the senators don’t have those limitations about what district to serve.”