          United States Court of Appeals
                      For the First Circuit


No. 16-1692

 KAREN L. DAVIDSON; DEBBIE FLITMAN; EUGENE PERRY; SYLVIA WEBER;
      AMERICAN CIVIL LIBERTIES UNION OF RHODE ISLAND, INC.,

                      Plaintiffs, Appellees,

                                v.

                 CITY OF CRANSTON, RHODE ISLAND,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF RHODE ISLAND

          [Hon. Ronald R. Lagueux, U.S. District Judge]


                              Before

                      Howard, Chief Judge,
               Lynch and Kayatta, Circuit Judges.


     Normand G. Benoit, with whom David J. Pellegrino, Robert K.
Taylor, and Partridge Snow & Hahn LLP were on brief, for appellant.
     Adam Lioz, with whom Brenda Wright, Dēmos, Dale Ho, Sean J.
Young, American Civil Liberties Union, Lynette J. Labinger, and
Roney & Labinger, LLP were on brief, for appellees.
     Christina Swarns, Sherrilyn Ifill, Janai Nelson, Leah C.
Aden, Coty Montag, Juan Cartagena, Jose L. Perez, Joanna E. Cuevas
Ingram, Rebecca R. Ramaswamy, Danielle C. Gray, Samantha M.
Goldstein, and O'Melveny & Myers LLP on brief for NAACP Legal
Defense & Educational Fund, Inc., LatinoJustice PRLDEF, Direct
Action for Rights and Equality, and Voice of the Ex-Offender, amici
curiae.
     Patrick Llewellyn, Aderson B. Francois, Yael Bromberg, and
Institute for Public Representation, Georgetown University Law
Center on brief for Former Directors of the U.S. Census Bureau,
amici curiae.


                      September 21, 2016
             LYNCH, Circuit Judge.       The City of Cranston appeals from

an injunction, entered by the district court, forbidding the City

from holding elections based on its 2012 Redistricting Plan and

ordering it to prepare a new redistricting plan within thirty days.

The district court held that the inclusion in the Redistricting

Plan of 3,433 inmates of the Adult Correctional Institutions

("ACI") in the population count of the City's Ward Six, the ward

in which the ACI is physically located, dilutes the votes of voters

in the City's other five wards in violation of the Equal Protection

Clause of the Fourteenth Amendment.               The question presented is

whether   the      Constitution   permits      Cranston      to    count   the     ACI

prisoners as residents of Ward Six.

             We issued a stay to preserve the status quo ante in

anticipation of the September 13, 2016 primaries and the November

8, 2016 general election.            We now hold that the methodology and

logic of the Supreme Court's decision in Evenwel v. Abbott, 136 S.

Ct. 1120 (2016), require us to reverse the district court and

instruct it to enter summary judgment in favor of the City.

                                        I.

             The    Rhode   Island    Constitution      specifies     that    state

legislative     districts    "shall     be    constituted     on    the    basis   of

population and . . . shall be as nearly equal in population . . .

as possible."        R.I. Const. art. VII, § 1; id. art. VIII, § 1.

Similarly,    Cranston's      charter,       ratified   by   the    Rhode    Island


                                       - 3 -
General Assembly in 1963, see 1963 R.I. Pub. Laws 550, "divide[s

Cranston] into six wards in such a manner that . . . all wards

shall contain as nearly as possible an equal number of inhabitants

as   determined   by    the   most    recent    federal    decennial   census,"

Cranston, R.I., City Charter § 2.03(b).                 "Each ward elects one

representative    to    the    City    Council    and     one   to   the    School

Committee," and all six wards collectively elect "three at-large

city   councilors      and    one   at-large    school    committee    member."

Davidson v. City of Cranston, No. 14-91L, 2016 WL 3008194, at *1

(D.R.I. May 24, 2016).

           The U.S. Census "serves as a linchpin of the federal

statistical   system."         Dep't    of     Commerce   v.    U.S.   House    of

Representatives, 525 U.S. 316, 341 (1999) (citation omitted).

Since 1790, the Census has produced its total-population counts by

counting each person where he or she "usually resides," see Act of

Mar. 1, 1790, § 5, 1 Stat. 101, 103, and from 1850 to the present

the Census has continually refined its "usual residence" rule for

determining where to count persons.            Currently, "usual residence"

is defined as "the place where [persons] live and sleep most of

the time."    2020 Decennial Census Residence Rule and Residence

Situations, 80 Fed. Reg. 28950 (May 20, 2015).

           The 2010 Census data used by Cranston in its 2012

Redistricting Plan, the most recent such plan, included in its

population count for the City 3,433 inmates of the ACI.                    The ACI,


                                       - 4 -
"which is located on a state-operated campus," Davidson, 2016 WL

3008194, at *2, is Rhode Island's sole state prison.          Although the

ACI makes "most requests for police services [to] the State Police,

which maintains an office at the ACI," "the Cranston police

occasionally deliver a prospective inmate to the prison."                Id. at

*2.   The ACI also depends on Cranston's roads and sewage system,

as well as on the City's fire department for emergency services.

            The City's population in the 2010 Census was 80,387, and

each of the City's six wards includes approximately 13,500 persons,

with a "total maximum deviation among the population of the six

wards [of] less than ten percent."           Id. at *1.      The 3,433 ACI

inmates were counted by the City as part of the 13,642 members of

Ward Six.   If the inmates were not included, Ward Six would contain

only 10,209 persons, and the maximum deviation among the population

of the wards would be approximately thirty-five percent.

            "[D]emographic   experts    retained      by     the     parties"

testified that "153 or 155 [ACI] prisoners came from Cranston at

the time of the Census," and that "[e]ighteen of those had pre-

incarceration    addresses   located    in    Ward   Six."         Id.      The

plaintiffs' demographic expert also testified that "the median

length of stay for those serving a sentence at the ACI is 99 days,"

and that "[t]he median stay for those awaiting trial is three

days."   Id. at *2.




                                - 5 -
               Those inmates at the ACI not imprisoned for felonies may

vote by absentee ballot in their pre-incarceration communities,

provided       that     they       meet    that     community's        absentee-ballot

requirements.          The Rhode Island Constitution forbids felons to

vote while incarcerated, R.I. Const. art. II, § 1, but under Rhode

Island       law,    non-felon     inmates    may    vote   at   their       "fixed   and

established domicile," the location of which is unaffected by their

incarceration, 17 R.I. Gen. Laws § 17-1-3.1(a), (a)(2).                             Taking

into       account   testimony      that   "approximately        37%    of    the    [ACI]

population is serving a felony sentence," the district court

estimated that only "six [or] seven inmates . . . could be eligible

to vote in Ward Six."          1   Davidson, 2016 WL 3008194, at *2.


       1  To be clear, this case is not about the right of the ACI
inmates to vote. Cranston argues that the district court "reached
the erroneous legal conclusion that [state law] forbids ACI inmates
from registering to vote in Cranston." The City contends that,
like other persons, the ACI inmates may "establish a new voting
domicile" in Cranston under the general standards set by Rhode
Island law. See R.I. Const. art. II, § 1 ("Every citizen of the
United States of the age of eighteen years or over who has had
residence and home in this state for thirty days next preceding
the time of voting, who has resided thirty days in the town or
city from which such citizen desires to vote, and whose name shall
be registered at least thirty days next preceding the time of
voting as provided by law, shall have the right to vote for all
offices to be elected . . . ."); 17 R.I. Gen. Laws § 17-1-3.1(a)
("The determinant of one's domicile is that person's factual
physical presence in the voting district on a regular basis
incorporating an intention to reside for an indefinite period.");
In re Op. of the Justices, 16 A.2d 331, 332 (R.I. 1940). This
contention, if true, would in turn cast doubt on the district
court's low estimate of eligible voters.
               We need not resolve this issue. Even assuming that the
district       court's estimate of voter-eligible ACI inmates is


                                           - 6 -
            In February 2014, four residents of Cranston and the

American Civil Liberties Union of Rhode Island filed a complaint

against the City under 42 U.S.C. § 1983 for declaratory and

injunctive relief alleging that Cranston's 2012 Redistricting Plan

violates the Equal Protection Clause of the Fourteenth Amendment.

The plaintiffs argued that the inclusion of the ACI inmates in

Ward 6 "inflates the voting strength and political influence of

the residents in Ward 6 and dilutes the voting strength and

political   influence   of    Plaintiffs   and     other   persons   residing

outside   of   Ward   6,"    thereby   violating    the    equal   protection

principle of "one person, one vote."2        The City filed a motion to

dismiss the complaint in March 2014, which the district court

denied in September 2014.        Davidson v. City of Cranston, 42 F.




accurate, its conclusion that the Constitution requires Cranston
to exclude the ACI inmates still does not follow.
     2    The plaintiffs' vote-dilution claim is distinct from a
different claim advanced by amici curiae NAACP et al., who have
argued that Cranston's inclusion of the ACI prisoners in Ward Six
is an example of "prison-based gerrymandering, which . . .
significantly and impermissibly weakens the political power of
communities of color" elsewhere in the state. This hypothetical
claim is that the inclusion of minority ACI inmates in the
Redistricting Plan dilutes the political power of the communities
of color where the prisoners resided pre-incarceration. The claim
is simply not advanced by the plaintiffs in this case, and we will
not hear new claims from amici. See González-Droz v. González-
Colón, 660 F.3d 1, 12 n.6 (1st Cir. 2011). To the degree amici
advance a policy argument, such an argument should be addressed to
the Rhode Island legislature.


                                   - 7 -
Supp. 3d 325 (D.R.I. 2014).              The parties then filed cross motions

for summary judgment in July and August of 2015.

               In May 2016, the district court denied the City's motion

for    summary       judgment     and     granted         summary     judgment      to   the

plaintiffs.       It held that the City's inclusion of the ACI inmates

in its Redistricting Plan violated the principle of "one person,

one    vote"    as   consistently        articulated         by     the   Supreme    Court,

notwithstanding         its     recent       decision       in    Evenwel    v.     Abbott.

Davidson, 2016 WL 3008194, at *3–4.                  Rejecting the City's argument

"that Evenwel stands simply for the constitutional propriety of

drawing district lines based on Census population data," the

district court instead stressed "the Supreme Court's emphasis on

the conceptual basis of representational equality."                         Id. at *4.

               The district court concluded that "[t]he inmates at the

ACI share none of the characteristics of the [historically non-

voting] constituencies [such as women, children, slaves, tax-

paying Indians, and non-landholding men] described by the Supreme

Court"    and    found    by    the     Court     to      deserve    representation       in

apportionment.         Id.     The district court found that the inmates

have no interest in Cranston's public schools, receive few services

from    the    City,    and    have     no    contact      with     Cranston's      elected

officials.       Id.     The court further emphasized that the "inmates

are    different       from    other     groups      of    non-voting       residents    of

Cranston," including "college students and military personnel."


                                             - 8 -
Id.   Unlike those non-voting residents, many of the inmates are

forbidden by law from voting in Cranston.

            And though college students "are most certainly affected

by municipal regulations," the court concluded that the ACI inmates

have no stake in the local political process.              Id.     The court

noted that, "were the Cranston City Council to enact any ordinance

bearing on the treatment of inmates or other conditions at the

ACI, it would no doubt be preempted by state law and therefore

unenforceable."      Id.    These distinctions, the court reasoned,

rendered Evenwel's general approval of districting based on Census

data inapplicable to the inclusion of prisoners in redistricting

population counts.    Id.

            The district court found support for its holding in

Calvin v. Jefferson County Board of Commissioners, No. 4:15CV131-

MW/CAS, 2016 WL 1122884 (N.D. Fla. Mar. 19, 2016), a case decided

shortly before Evenwel.      Davidson, 2016 WL 3008194, at *5.            In

Calvin, the court held that the Equal Protection Clause barred

Jefferson   County   from   including   prisoners   from    the    Jefferson

Correctional Institution, a state prison, in its redistricting

population count.      2016 WL 1122884, at *28.       The Calvin court

reached this conclusion because the prisoners "comprise a (1) large

number of (2) nonvoters who (3) lack a meaningful representational

nexus with the [County] Boards, and . . . [are] (4) packed into a

small subset of legislative districts."      Id. at *19.         As a result,


                                 - 9 -
the inclusion of the prisoners unconstitutionally diluted the

voting power of those in other County districts.                  Id. at *26.

              The district court found that Calvin's reasoning applied

with   full    force     to    Cranston's      similar   inclusion      of   the   ACI

prisoners in its Redistricting Plan.                  Davidson, 2016 WL 3008194,

at *5.     It granted summary judgment to the plaintiffs; entered

declaratory judgment on behalf of the plaintiffs; enjoined the

City, the City Council, and the City's Board of Canvassers "from

holding    further       elections   under      the   current   ward    districting

plan"; and ordered the City Council to "propose a [new] districting

plan that complies with this Order" within thirty days.                       Id. at

*6.    The court vacated its declaratory judgment in a separate

order.    Cranston then filed this timely appeal.

                                          II.

              Before addressing the merits of the City's appeal, we

must ask whether we have jurisdiction to hear it.                       The parties

agree that we have jurisdiction, but partly dispute its source and

the resulting standard of review.

              The City argues that we have jurisdiction pursuant both

to 28 U.S.C. § 1291, which grants us jurisdiction over "appeals

from all final decisions of the district courts of the United

States,"      and   to    28    U.S.C.     §    1292(a)(1),     which    grants    us

jurisdiction over "[i]nterlocutory orders of the district courts

of the United States . . . granting, continuing, modifying,


                                         - 10 -
refusing or dissolving injunctions, or refusing to dissolve or

modify injunctions, except where a direct review may be had in the

Supreme Court."      The City argues that the district court's "order

was final for all practical purposes because, based on the District

Court's findings of fact and conclusions of law, the City's

apportionment was deemed unconstitutional," and that accordingly

the proper standard is the de novo review we give to "cross motions

for summary judgment."       See Segrets, Inc. v. Gillman Knitwear Co.,

207 F.3d 56, 61 (1st Cir. 2000) (standard of review for appeal

from summary judgment is de novo).

             The plaintiffs argue that because "the district court

entered but then vacated a judgment in a separate document . . .

there is no final judgment allowing appellate jurisdiction under

28 U.S.C. § 1291."          See Fed. R. Civ. P. 58(a).               Instead, the

plaintiffs      contend    that   our    only   avenue     for   review   is   our

jurisdiction     over     interlocutory     appeals      under   §   1292.     The

plaintiffs contend that review under § 1292 triggers a deferential

abuse of discretion standard.

             This disagreement is less significant than it seems.

Whether or not the district court's judgment could be treated as

"final"   for    purposes    of   §     1291,   we   are   satisfied    that   the

injunctive relief the district court granted allows us to review

Cranston's appeal under § 1292.             See Small v. Wageman, 291 F.2d

734, 735 n.1 (1st Cir. 1961) ("Since the appeal is from an order


                                      - 11 -
of the District Court granting an injunction, this court clearly

has appellate jurisdiction under Title 28 U.S.C. § 1292(a)(1).").

While the plaintiffs take the position that "[a]n appeal from

interlocutory relief is reviewed for abuse of discretion," this

statement is overbroad.        The cited cases actually stand for the

narrower proposition that the abuse of discretion standard applies

to a district court's decision on a request for a preliminary

injunction.

           This appeal arises from a permanent injunction that

necessarily rests upon an actual adjudication of the merits.          That

adjudication, in turn, was entered summarily under Rule 56, rather

than after a trial.    Cranston's challenge is to the merits of the

district   court's   summary    judgment   ruling. 3   Accordingly,    our

review is de novo.    See Domínguez-Cruz v. Suttle Caribe, Inc., 202

F.3d 424, 428 (1st Cir. 2000) ("Our review of the entry of summary

judgment is de novo."); Casas Office Machs., Inc. v. Mita Copystar

Am., Inc., 42 F.3d 668, 678 (1st Cir. 1994) (stating, in an

interlocutory appeal, that a permanent injunction could "stand

only if the court properly awarded summary judgment," and applying

a de novo standard of review).        Further, the issue presented is



     3    Cranston also challenges the district court's factual
findings concerning the ACI inmates' "representational nexus" to
the City. Because we find Cranston's challenge to the district
court's legal analysis dispositive, we do not reach its challenge
to the district court's factual findings.


                                  - 12 -
one of law, engendering de novo review.              Esso Standard Oil Co. v.

Lopez-Freytes, 522 F.3d 136, 142 (1st Cir. 2008).

                                     III.

            It is true that Evenwel did not decide the precise

question before us.        Nevertheless, we hold that its methodology

and logic compel us to hold in favor of Cranston.               Evenwel dictates

that we look at constitutional history, precedent, and settled

practice.     136 S. Ct. at 1126.          Doing so leads us to find the

inclusion    of   the    ACI   prisoners    in    Ward    Six   constitutionally

permissible.      In particular, Evenwel did not disturb Supreme Court

precedent     that      apportionment      claims       involving     only   minor

deviations normally require a showing of invidious discrimination,

which has not even been alleged here.               Without such a showing of

discrimination, Evenwel reinforces that federal courts must give

deference to decisions by local election authorities related to

apportionment.       Finally, the Evenwel Court gave general approval

to   the    use   of    total-population         data    from   the    Census   in

apportionment, which is what Cranston used here.                 Application of

these principles requires us to uphold the constitutionality of

Cranston's decision to include the ACI inmates in Ward Six.

            Evenwel rejected an equal protection challenge to the

use of total-population data from the 2010 Census to redraw Texas's

State Senate districts.         Id. at 1125.        The resulting districting

map's "maximum total-population deviation [among districts was]


                                    - 13 -
8.04%, safely within the presumptively permissible 10% range."

Id.; see also Brown v. Thomson, 462 U.S. 835, 842–43 (1983)

(establishing ten-percent range).             "But measured by a voter-

population baseline -- eligible voters or registered voters -- the

map's maximum population deviation exceed[ed] 40%."                 Evenwel, 136

S. Ct. at 1125.     Plaintiffs from "Texas Senate districts . . .

with     particularly      large     eligible-     and           registered-voter

populations" sued, "[c]ontending that basing apportionment on

total population dilute[d] their votes in relation to voters in

other Senate districts, in violation of the one-person, one-vote

principle of the Equal Protection Clause."            Id.    The basic theory

of their complaint was that the Constitution's one-person, one-

vote principle, first announced and applied to state governments

in Reynolds v. Sims, 377 U.S. 533, 560–61 (1964), and later applied

to local governments in Avery v. Midland County, 390 U.S. 474,

484–86    (1968),   requires       that   political      bodies       use   voter

population,   rather    than   total      population,       in    apportionment.

Evenwel, 136 S. Ct. at 1125–26.              A three-judge district-court

panel had dismissed the complaint, holding that "[d]ecisions of

[the Supreme] Court . . . permit jurisdictions to use any neutral,

nondiscriminatory population baseline, including total population,

when drawing state and local legislative districts."                 Id. at 1126.

           The   Supreme    Court     affirmed.       The        Court   examined

"constitutional history," id. at 1127–30, precedent, id. at 1130–


                                    - 14 -
32,    and    "settled      practice,"             id.   at    1132.         After     reviewing

historical materials, the Court concluded that "it remains beyond

doubt that the principle of representational equality figured

prominently in the decision to count people, whether or not they

qualify      as    voters."           Id.     at    1129.           Likewise,    the       Court's

precedents "suggested[] repeatedly[] that districting based on

total population serves both the State's interest in preventing

vote     dilution         and    its        interest      in        ensuring     equality          of

representation."                Id.    at     1131.           The    Court     observed       that

"[a]dopting voter-eligible apportionment as constitutional command

would upset a well-functioning approach to districting that all 50

States       and    countless         local    jurisdictions           have     followed          for

decades, even centuries."                    Id. at 1132.             Moreover, the Court

rejected      the    more       general       notion     that        nonvoters       are    not    a

significant population for apportionment:

       Nonvoters have an important stake in many policy debates
       -- children, their parents, even their grandparents, for
       example, have a stake in a strong public-education
       system -- and in receiving constituent services, such
       as help navigating public-benefits bureaucracies.     By
       ensuring that each representative is subject to requests
       and suggestions from the same number of constituents,
       total-population apportionment promotes equitable and
       effective representation.

Id.

               Several principles emerge from Evenwel.                               First, the

Court did not disturb precedents holding that, where Reynolds's

requirements         of    population-based              apportionment           are       met,     a


                                              - 15 -
plaintiff usually must show invidious discrimination to make out

an apportionment claim under the Equal Protection Clause.                  The

Court has made it clear elsewhere that:

        Where the requirements of Reynolds v. Sims are met,
        apportionment schemes . . . will constitute an invidious
        discrimination only if it can be shown that "designedly
        or otherwise, a multi-member constituency apportionment
        scheme, under the circumstances of a particular case,
        would operate to minimize or cancel out the voting
        strength of racial or political elements of the voting
        population."

Burns v. Richardson, 384 U.S. 73, 88 (1966) (quoting Fortson v.

Dorsey, 379 U.S. 433, 439 (1965)); see also Gaffney v. Cummings,

412 U.S. 735, 754 (1973) ("As we have indicated, for example,

multimember     districts   may     be     vulnerable    [to   constitutional

challenge], if racial or political groups have been fenced out of

the   political   process   and    their     voting     strength    invidiously

minimized.").     Here, there is no showing, nor even a claim, that

either racial or political groups have been fenced out of the

process in Cranston.

             The Court has further emphasized in the context of state-

level    apportionment   that     "minor    deviations     from    mathematical

equality among . . . districts are insufficient to make out a prima

facie case of invidious discrimination," Brown, 462 U.S. at 842

(quoting Gaffney, 412 U.S. at 745), and that "as a general matter,

. . . an apportionment plan with a maximum population deviation

under 10% falls within this category of minor deviations," id.



                                    - 16 -
Again,    the     plaintiffs       have    made     no    claim      that     Cranston's

redistricting works any invidious discrimination.

               Second, Evenwel reinforced the principle established by

earlier Supreme Court decisions that courts should give wide

latitude to political decisions related to apportionment that work

no invidious discrimination.               It has long been constitutionally

acceptable, but by no means required, to exclude non-voting persons

such as "aliens, transients, short-term or temporary residents, or

persons   denied     the    vote    for     conviction        of    crime    [from]     the

apportionment      base,"    Burns,       384    U.S.    at   92,    so     long   as   the

apportionment scheme does not involve invidious discrimination,

id. at 89.      The Court has repeatedly cautioned that such decisions,

absent any showing of discrimination, "involve[] choices about the

nature    of    representation       with       which    we   have    been     shown     no

constitutionally founded reason to interfere."                        Id. at 92; see

also Brown, 462 U.S. at 847–48 ("Particularly where there is no

'taint of arbitrariness or discrimination,' substantial deference

is to be accorded the political decisions of the people of a State

acting through their elected representatives." (citation omitted)

(quoting Roman v. Sincock, 377 U.S. 695, 710 (1964))).                        Cranston's

Redistricting Plan, accordingly, is entitled to deference.




                                          - 17 -
                 Third, Evenwel approved the status quo of using total

population        from   the      Census    for     apportionment.   4     The    Court

underlined that point when it observed that "in the overwhelming

majority of cases, jurisdictions have equalized total population,

as measured by the decennial census.                 Today, all States use total-

population numbers from the census when designing congressional

and state-legislative districts, and only seven States adjust

those census numbers in any meaningful way."                    136 S. Ct. at 1124.

The    Court      further    noted    that    only     four   states     (California,

Delaware,        Maryland,     and   New    York)    "exclude    inmates    who   were

domiciled out-of-state prior to incarceration."                    Id. at 1124 n.3

(citing Cal. Elec. Code § 21003(a)(5); Del. Code Ann. tit. 29,

§ 804A; Md. Code Ann., State Gov't § 2–2A–01; and N.Y. Legis. Law

§ 83–m(13)(b)).

                 It is implausible that the Court would have observed

that       the   majority    of   states     use    unadjusted    total    population

(including prisoners) from the Census for apportionment, upheld

the constitutionality of apportionment by total population as a



       4  Several past directors of the United States Census
Bureau have submitted an amicus brief arguing that "the usual
residence rule and the Census Bureau's determination of where to
count persons for census purposes are not designed to answer the
question of where those persons should be counted for redistricting
purposes," particularly in the case of incarcerated individuals.
That may well be the case. But it does not follow that a town
errs in itself relying on census data to determine population in
the absence of any unusual circumstances not presented here.


                                           - 18 -
general   proposition,     and    yet   implied    that   the    inclusion    of

prisoners    in   total   population    for    apportionment,      without   any

showing of discrimination, is constitutionally suspect.                 The more

natural reading of Evenwel is that the use of total population

from the Census for apportionment is the constitutional default,

but certain deviations are permissible, such as the exclusion of

non-permanent residents, inmates, or non-citizen immigrants.                 See

Evenwel, 136 S. Ct. at 1124 n.3, 1132–33; see also Burns, 384 U.S.

at   92   (recognizing     that    these      decisions   belong       to   state

legislatures).      Those permissible deviations are just that --

optional, but not the norm.        The norm, as practiced by the large

majority of states, is to district based on total-population data

from the Census, which includes prisoners.                Evenwel held this

approach to be "plainly permissible."             136 S. Ct. at 1126.        For

the past half-century, Cranston has chosen to use this "plainly

permissible" method for its districting.

            We also note the risks inherent in the plaintiffs'

theory.     The district court's reading of Evenwel would turn one

of the arguably permissible adjustments to total-population data

Evenwel described briefly in a footnote -- the exclusion of

prisoners with domiciles out of state -- into a constitutional

requirement even for in-state prisoners.              Plaintiffs' analysis

invites federal courts to engage in what have long been recognized

as   paradigmatically     political     decisions,    best      left   to   local


                                   - 19 -
officials, about the inclusion of various categories of residents

in the apportionment process.

             We decline that invitation.            The decision whether to

include or exclude the ACI prisoners in Cranston's apportionment

is one for the political process.            This conclusion becomes more

obvious when one considers the unusual nature of the plaintiffs'

vote-dilution claim.      The plaintiffs claim that the overwhelming

majority   of    Cranston's     population     (more   than   66,000    of   its

approximately 80,000 residents) has incrementally diluted its own

voting power by inflating the voting power of voters in Ward Six.

That majority, which controls at least five of Cranston's nine

city councilors, may reverse its own decision if it sees fit.

             Under the logic of Evenwel and the Supreme Court's

earlier apportionment jurisprudence, Cranston's 2012 Redistricting

Plan easily passes constitutional muster.               As mandated by the

City's charter, which mirrors the total-population apportionment

required by Rhode Island's constitution, the Redistricting Plan is

based on total population from the Census.             It contains a maximum

population deviation of less than ten percent.                And there is no

evidence   that    the   plan    works   any    invidious     discrimination.

Cranston's      longstanding     tradition     of    districting   by    total




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population based on the Census aligns with the practice of the

large majority of states, which Evenwel endorsed.5

               The plaintiffs advance other arguments in support of

affirmance, but they fare no better than the district court's

reading of Evenwel.            The plaintiffs contend that the City's

Redistricting Plan violates the Equal Protection Clause because

"Supreme Court precedent establishes that jurisdictions may not

blindly or conclusively rely upon Census numbers when drawing their

districts, but rather must look to the realities on the ground

when seeking to achieve representational equality."             But the cases

they        cite   for      this   proposition     involve    facts     easily

distinguishable from those of this appeal.

               Plaintiffs cite to Evans v. Cornman, 398 U.S. 419 (1970),

which       involved   an   unconstitutional     exclusion   from   Maryland's

voting rolls of persons who lived on a federal enclave in Maryland.

The case does not speak to a city's inclusion of inmates residing

in a state-operated prison facility located within the city.

               In Mahan v. Howell, 410 U.S. 315, modified in part, 411

U.S. 922 (1973), the Virginia state legislature divided the cities

of Virginia Beach and Norfolk into three districts each calculated

to have an equal population and a single senatorial representative.

In calculating the supposedly equal districts, however, the state


        5 To our knowledge, the Supreme Court has never adopted a
"representational nexus" analysis.


                                     - 21 -
relied on Census data to assign to one district roughly 18,000

military personnel who lived in the adjoining districts, thereby

diluting the votes of the military personnel.6       In those "unusual,

if not unique, circumstances," the Court affirmed a decision

requiring reapportionment in order to eliminate "discriminatory

treatment" of the military personnel.            Id. at 331–32.     Here,

plaintiffs advance no claim that the state legislature has diluted

their votes in a manner that implicates a comparable consideration

of discriminatory treatment.

          There   has   been   no   allegation    that   the   Census   has

mistakenly assigned the ACI inmates to a place that was not their

residence at the time the Census was conducted, nor has there been

any allegation that the assignment resulted in "discriminatory

treatment" of the inmates or any other party.7           The inclusion of

the prisoners in the 2010 Census data for the City affords a



     6    The Census data assigned all personnel to the location
of their ship berths. Id. at 330 n.11.
     7    Likewise, in Hartung v. Bradbury, 33 P.3d 972, 986–87
(Or. 2001) (en banc), the Oregon Supreme Court held that the Oregon
Secretary of State had incorrectly relied on Census data that
assigned the inmates of a federal prison to the wrong Census block
after the inaccuracy had been brought to his attention.         The
court's holding on this challenge was articulated primarily on
state-law grounds, and the court "stress[ed] that this holding is
limited to the particular circumstances of this case. We do not
suggest that the Secretary of State always must question census
data or that the Secretary of State must investigate simply on the
allegation that the Census Bureau made an error."       Id. at 987
n.26.


                                - 22 -
presumptively   valid   reason    for   including   them    in   the   City's

Redistricting Plan.     Nothing argued by the plaintiffs or found by

the district court casts doubt on that presumptive validity.

           Ultimately, the plaintiffs' arguments and the reasoning

of the district court are hard to distinguish from the "voter

population" argument rejected in Evenwel.           This is most obvious

when the plaintiffs and the district court emphasize that although

the maximum deviation of total population in Cranston's wards is

less than ten percent when one includes the ACI inmates in Ward

Six, that figure leaps to thirty-five percent if one excludes the

ACI prisoners in Ward Six.       See Davidson, 2016 WL 3008194, at *1.

Like the disparities in voter population complained of by the

Evenwel   plaintiffs,    this    argument   begs    the    question.      The

Constitution does not require Cranston to exclude the ACI inmates

from its apportionment process, and it gives the federal courts no

power to interfere with Cranston's decision to include them.

                                    IV.

           The order of the district court is reversed, and the

case is remanded with instructions to enter summary judgment for

the City of Cranston.




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