New York prison-based gerrymandering bill Sponsor’s Memo

This is the text of the Sponsor’s Memo for S6725A/A9834A, the original bills that passed as part XX of the budget (A9710D/S6610C), ending prison-based gerrymandering in New York State in 2010.-Peter Wagner

submitted in accordance with Senate Rule VI. Sec 1
    BILL NUMBER: S6725A              REVISED 06/09/10


    An act to amend the correction law, the legislative law, and the munici-
    pal home rule law, in relation to the collection of census data

    Provides that for the purposes of redistricting at the State and Munici-
    pal level, incarcerated persons shall be counted as residents of their
    places of residence prior to incarceration rather than as residents of
    their place of incarceration.

    Section 1 sets forth the legislative intent for the act.

    Section 2 amends section 71 of the Corrections Law to require that in
    each year that the Federal Decennial Census is taken that the Department
    of Correctional Services shall, by July 1, provide the Legislative Task
    Force on Demographic Research and Reapportionment with the residential
    address prior to incarceration for each incarcerated person for whom the
    Department of Correctional Services provided information to the United
    States Census Bureau.

    Section 3 amends the section 83-m of the Legislative Law to require the
    Legislative Task Force on Demographic Research and Reapportionment for
    the purposes of the amended data set it develops, to correct the resi-
    dential allocation of incarcerated persons such that incarcerated
    persons are reflected not within the census block of the correctional
    facility but rather, where possible, in the census block of their resi-
    dential address prior to incarceration.  This section requires that such
    amended data set be used for the drawing of Senate and Assembly

    Section 4 amends the Municipal Home Rule law to require municipalities,
    for the purposes of redistricting, to reflect incarcerated persons not
    within the census block of the correctional facility but rather, where
    possible, in the census block of their residential address prior to

    Section 5 sets forth a severability provision.

    Section 6 provides that the act is effective immediately.

    Currently, the United States Bureau of the Census includes everyone
    housed in federal, state, and local correctional facilities in its count
    of the general population of the census block that contains the facili-
    ty. Until the Census Bureau provides the information necessary to count
    people in prison at their address prior to incarceration for the purpose
    of redistricting, the issue must be addressed at the state level. With
    this legislation, New York joins the ranks of states developing practi-
    cal and effective solutions to count people in prison at their addresses
    prior to incarceration for the purpose of redistricting.

    This legislation counts people in prison at their address prior to
    incarceration only for the drawing of legislative districts. The Census
    Bureau will continue to count the prison population in the district
    where the prison is located. Since this legislation in no way alters the
    underlying census data, it has no impact on funding formulas and allo-
    cations given to the state or distributed within the state that are
    based on federal census data.

    States and localities are addressing this issue because of the distort-
    ing effect that counting people in prison in the prison district has on
    the drawing of legislative boundaries. Moreover, the prison population
    is distinguishable from other populations, such as students and those
    serving in the military, that are counted by the Census Bureau in what
    are referred to as "Group Quarters."1

    People who have been convicted of a felony and are incarcerated or on
    parole cannot vote in New York State, either in the district where the
    prison is located or using an absentee ballot at their address prior to
    incarceration. In contrast, college students and military personnel can
    participate in elections and register to vote from either their local
    residence or by submitting an absentee ballot. In addition, people in
    prison do not interact with or benefit from the district where the pris-
    on is based.  People in prison do not use the schools, hospitals, or
    other public facilities in the community where the prison is based. The
    costs of the prisons are not borne by the community where the prison is
    located, but rather by all New York State taxpayers. Costs that are not
    covered by the State, such as phone expenses and commissary bills, are
    paid for by the families of people in prison.

    When it comes to the amount of time a person in prison spends in anyone
    prison location, of the 15,811 new court commitments to DOCS custody in
    2008,60% had sentences of 3 years or less.  Less than 6% had sentences
    of 10 years or more, and only a tiny fraction - 15 people - are serving
    sentences for Life Without Parole.  Out of the entire DOCS population of
    nearly 58,000 inmates, only 202 are in for Life Without Parole. For
    those who do remain in custody for years, most move frequently between
    facilities and jurisdictions.2

    Federal Law
    The state's current reliance on the Census Bureau's flawed prison counts
    when drawing legislative districts, violates federal law in two ways:
    (1) it dilutes minority voting strength in violation of Section 2 of the
    Voting Rights Act of 1965; and (2) it violates the one person, one vote
    principle of the Equal protection Clause, which requires voting
    districts to have equal numbers of residents (because people in prison
    are not residents of the districts where they are incarcerated and

    In 1964's land mark ruling, Reynolds v. Sims, 377 U.S. 533 (1964), the
    Supreme Court held that state legislative districts must represent a
    roughly equal number of people. Affirming the "one person, one vote"
    principle, Chief Justice Warren minced no words in his celebrated opin-
    ion, writing, "Legislators represent people, not trees or acres.  Legis-
    lators are elected by voters, not farms or cities or economic interests.
    As long as ours is a representative form of government, the right to
    elect legislators in a free and unimpaired fashion is a bedrock of our
    political system." The Census Bureau's current methodology undermines
    the "one person, one vote" Principle supported by prevailing public
    values as well as constitutional jurisprudence.

    State Law
    The Census Bureau's current methodology also violates New York State law
    in two ways: (1) it runs afoul of the New York State Constitution which
    states in Article 2, section 4 that for the purpose of voting, "no
    person shall he deemed to have gained or lost a residence...while
    confined in any public prison"; and (2) similarly, subdivision 1 of
    section 5-104 of the New York Election Law states that "For the purpose
    of registering and voting "no person shall be deemed to have gained or
    lost a residence...while confined in any public prison. In addition, the
    1894 New York Court of Appeals decision in People v Cady, 37 N.E. 673
    (N.Y. 1894), stated that people in prison could not be considered resi-
    dents of the prison where they are incarcerated.

    Based on federal and state law, people in prison therefore remain legal
    residents of their address prior to incarceration.  Unfortunately, the
    current Census Bureau's methodology disregards this, instead counting a
    significant proportion of the national population in the wrong place.
    Crediting the population of prisoners to the Census block where they are
    temporarily and involuntarily held creates electoral inequities at all
    levels of government.

    Local Governments
    Counting people in prison in the prison district, most significant
    impacts vote dilution in rural communities as most counties, cities, and
    towns use federal census data to draw their local legislative district
    and ward boundaries. St. Lawrence County, in northern New York, drew
    legislative districts with Census 2000 data that included more than
    3,000 people in three correctional facilities as if they were actual
    residents of two small towns, Ogdensburg and Gouverneur. The increased
    voting power of Ogdensburg and Gouverneur residents diluted the votes in
    the many St. Lawrence County residents who do not live near those pris-
    ons. This inequity created a long-running and disruptive controversy in
    St. Lawrence, and a petition opposing the unequal representation gath-
    ered more than 2,000 signatures.3

    County legislators and supervisors in 1.3 counties in New York have
    subtracted the prison population from the official count prior to draw-
    ing county legislative districts or designing weighted voting systems to
    ensure equal representation and avoid creating a legislative districts
    that have more people in prison than actual residents. The New York
    counties that have corrected the census data to remove people in prison
    before redistricting include: Cayuga, Chemung, Clinton, Dutchess, Essex,
    Franklin, Greene, Orange, Orleans, Schoharie, Sullivan, Washington, and

    In Essex County's detailed justification for tile removal of people in
    prison, me County offered me following explanation:

    "Persons incarcerated in state and federal correctional institutions
    live in a separate environment, do not participate in me life of Essex
    County and do not affect me social and economic character of me
    towns.... The inclusion of these federal and state correctional facility
    inmates unfairly dilutes tile votes or voting weight of persons residing
    in other towns within Essex County..."4

    These 13 counties in New York have joined municipalities across me coun-
    try to address, on me local level, me redistricting inequities mat
    result from relying on me Census Bureau's counting of people in prison.
    This removal of people in prison on tile local level does not put incar-
    cerated people back in their census blocks prior to incarceration. From
    tile perspective of these rural counties, however, counting people at
    home and not counting them at all results in the same outcome--either
    way, me data may use for county districts does not contain the prison

    Other States
    About a 100 local governments exclude, for redistricting purposes, the
    Census Bureau's prison counts. A few states (Colorado, Mississippi, New
    Jersey and Virginia) require or encourage local governments to do so,
    but the majority of these counties do so on their own.5

    As awareness in me issue of prison-based gerrymandering has grown, so
    too has interest in state level solutions. Similar legislation has been
    introduced recently in Connecticut, Florida, Illinois, Oregon, Rhode
    Island, and Wisconsin mat would determine me home addresses of incarcer-
    ated people and count them at their addresses prior to incarceration.
    During the 2010 legislative session, similar legislation was signed into
    law in Maryland passed me House in Delaware.6

    New Bill.


    This act shall take effect immediately.

    1 For more details on who is counted as a part of Group Quarters, see:
    U.S. Department of Commerce, Bureau of the Census (2009). 2010 Census
    Ouestionnaire Reference Book. Washington, D.C. English.pdf
    2 New York Department of Correctional Services(2009). Under Custody
    Report: Profile of Inmate Population Under Custody on January 1, 2009.
    Albany, NY. Report
    3 Prison Policy Initiative (2007). Phantom constituents in the Empire
    State: How outdated Census Bureau methodology burdens New York counties.
    4 More information regarding the Essex County Local Law No.1 2003 is
    available at the Prison Policy Initiative website.
    5 Colo.Rev.Stat.sec.30-10-306.7(5)(a);Miss.Code Section 47-1-63;
    N.J.S.A.18A:13-8; Va. Code Ann, ยง24.2304.1. The Prison Policy Initiative
    tracks legislation of this type on a frequently updated page at:
    6 S.B. Bill 1386, 112th Regular Session (Fla, 2010); H.B. 4650, 96th
    General Assembly (Ill.2009); S.B. 400, 427th Session (MD. 2010), A.
    Res, 63, 99th Session (Wis.2009). The Prison Policy Initiative tracks
    legislation of this type on a frequently updated page at:

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