Site Network:Prison Policy Initiative|Prisoners of the Census

Example Bill: Ending prison-based gerrymandering in your state.

This bill is an example of how a state can end prison-based gerrymandering without waiting for the Census Bureau to change where it counts incarcerated people. This bill would require the state Department of Corrections to, over time, improve its collection of home address information, and would develop procedures to use existing data to adjust the federal census prior to redistricting. In the comments, we also describe some issues that you may discover while adapting this to your state.

—Peter Wagner
last updated Jan 19, 2012

Purpose of Legislation

This bill provides for adjusting population data used in redistricting to conform to the Oregon Constitution. The Census Bureau allocates incarcerated persons as if they were residents of their places of incarceration rather than of their home addresses. Article IV of Section 4, however, states that for “the purpose of voting, no person shall be deemed to have gained, or lost a residence… while confined in any public prison.”

Most states have constitutional or statutory provisions defining residence. See our 50 state guide for the law in each state.

Bill

Section 1. The legislature notes that section 4 of article IV of the Oregon constitution provides in pertinent part as follows: “For the purpose of voting, no person shall be deemed to have gained, or lost a residence… while confined in any public prison.” Investigation has shown that, despite these provisions, the Census classifies incarcerated persons as residents of their places of incarceration rather than of their home addresses. The provisions of this act are necessary to provide procedures and duties to correct this discrepancy.

Most states have constitutional or statutory provisions defining residence. See our 50 state guide for the law in each state.

Section 2. The election law is amended by adding a new section 188.020 to read as follows:

In Oregon, we had to specify the section being added.

1. The Department of Corrections shall collect and maintain an electronic record of the proper residential address, presumptively outside of the facility, for all people entering its custody after January 1, 2012. At a minimum, this record should contain the last known complete street address prior to incarceration, their race, whether the person is of Hispanic or Latino origin, and whether the person is over the age of 18. To the degree possible, should also allow an alternative proper residential address to be updated as appropriate.

This section requires that the Department of Corrections start keeping records of residence for people entering its custody. Because most prison sentences are short, starting the data collection process for people entering custody starting in 2012 would produce a nearly complete data set for redistricting following the 2020 Census.

An additional consideration is whether to limit or expand this requirement to certain types of correctional facilities. [Example analysis for different kinds of facilities in Oklahoma.]

2. Reports to the Secretary of State.

In Oregon, the Secretary of State has an active role in redistricting. In other states, other agencies or the legislature itself may be more appropriate to handle the adjustment.

(a) In each year in which the federal decennial census is taken but in which the United States Bureau of the Census allocates incarcerated persons as residents of correctional facilities, the Department of Correctional Services shall by July 1st of that same year deliver to the Secretary of State:

The Department of Corrections is required to provide the Secretary of State with the residence, race, ethnicity, and age information for each person in custody at Census time.

This section also says that if, in the future, the Census Bureau counts incarcerated people at their home addressees, the Department of Corrections will no longer have to provide this data independently to the Secretary of State.

(i) a unique identifier, not including the name, or SID (state offender ID) number, for each incarcerated person subject to the jurisdiction of the department on the date for which the decennial census reports population;

(ii) the street address of the correctional facility in which such person was incarcerated at the time of such report;

(iii) the residential address of such person prior to incarceration or other proper residential address (if known);

Each state's Department of Corrections may have a different name for the ID number assigned to those under its jurisdiction.

(iv) the person’s race, whether the person is of Hispanic or Latino origin, and whether the person is over the age of 18 (if known);

States that determine that race, ethnicity, and age data are not needed can remove section 2 (2)(a)(iv).

(v) any additional information as the Secretary of State may request pursuant to law.

(b) The department shall provide the information specified in paragraph (a) of this subdivision in such form as the Secretary of State shall specify.

(c) Notwithstanding any other provision of law, the information required to be provided pursuant to this subdivision shall not include the name of any incarcerated person and shall not allow for the identification of any such person therefrom. The same shall be treated as confidential and shall not otherwise be disclosed except as aggregated by census block for purposes specified in Section 5.

3. Federal facilities. The Secretary of State shall request each agency that operates a federal facility in this State that incarcerates persons convicted of a criminal offense to provide the Secretary of State with a report including the information listed in subsection (a) of Section 2.

While the state cannot require the federal government to participate in a state redistricting effort, there is no reason why the federal government would not respond to reasonable requests for cooperation given sufficient time and support.

4. Determinations by the Secretary of State.

(a)For each person included in a report received under Sections 2 and 3, the Secretary of State shall determine the geographic units for which population counts are reported in the federal decennial census that contain the address of the facility of incarceration and the proper residential address as listed according to the report.

(b) For each person included in a report received under Sections 2 and 3, if the proper residential address is known and in this State, the Secretary of State shall:

(i) Re-allocate all relevant population counts reported in the census to reflect residential address as determined under Sections 2 and 3 on the day for which the census reports population.

(ii) Ensure that the person is not represented in any applicable population counts reported in the federal decennial census for the geographic units that include the facility at which the person was incarcerated on the day for which the census reports population.

The Secretary of State is required to re-allocate the redistricting data to reflect incarcerated persons at their residential addresses.

(c)For each person included in a report received under Sections 2 and 3 and for all persons reported in the census as residing in a federal correctional facility for whom a report was not provided, if the proper residential address is unknown or not in this State, the Secretary of State shall:

(i) Re-allocate all relevant population counts reported in the census to reflect that the person resided at an unknown geographic location within the State on the day for which the census reports population.

(ii) Ensure that the person is not represented in any applicable population counts reported in the federal decennial census for the geographic units that include the facility at which the person was incarcerated on the day for which the census reports population.

This section provides a process for cases where data is incomplete.

(d) The data prepared by the Secretary of State pursuant to this section shall be completed and published no later than 30 days from the date that federal decennial PL94-171 data is published for the state of Oregon.

The time allotted to the Secretary of State for completing the new dataset may need to be increased or decreased depending on each individual state's redistricting time line.

5. The data prepared by the Secretary of State in Section 4 shall be the basis of state house of representative districts, state senate districts, and all local government districts that are based on population. Residences at unknown geographic locations within the State under subsection (c) of Section 4 shall not be used to determine the ideal population of any set of districts, wards, or precincts.

This section requires that the adjusted data be used for state, county, and other local redistricting. These adjusted numbers will not include anyone for whom there is no acceptable residential address.

6. If any provision of this Act or the application of any provision of this Act to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the Act that can be given effect without the invalid provision or application, and for this purpose the provisions of this Act are severable.

This is a standard severability clause.