Prisons Warp Vote

by Brett Blank, January 8, 2008 Link

Cross-posted from TomPaine.com.

There once was a time when in the state of New Hampshire, wealth bought votes. It wasn’t illicit or even unusual. In fact it was the law of the state. The amount of power each Senate district had was directly proportional to its taxes paid. This method of redistricting was struck down in Reynolds v. Sims less than 45 years ago.

New Hampshire was not alone. Other states had fundamentally unfair apportionment schemes. For example, Alabama gave every county the same number of state senators. As a result, sparsely populated Lowndes County had the same number of state senators as densely populated Jefferson County. This too was struck down by Reynolds v. Sims.

In that case, the Court declared its now-famous “one person, one vote”  principle, holding that the Constitution prohibits redistricting plans giving voters in one area power beyond their numbers. The Court explicitly held that “legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests.”

In other words, apportionment plans must be based on population and where voters reside should not affect the power of their vote. As a result, an industry or other economic interest can only exert political influence in proportion to the number of people that support it. The Reynolds case intended to permanently the settle the question of whether other interests besides population can be the basis of representative democracy.

Except it didn’t.

The Census Bureau counts people in prison where their bodies are located on census day, not where they come from and where they will return, on average, 34 months later. Forty-eight states bar prisoners from voting, and most states have constitutional clauses or election law statutes which explicitly declare that prisoner remains legal residents of their home addresses. When states draw districts based on the Census Bureau’s padded counts of prison locales, they give those districts extra representation just because the prison industry has a facility there.

Where prisoners are counted matters not only in big-prison states like Texas, it matters everywhere. New Hampshire has one of the lowest incarceration rates in the nation, yet relying on the prisoner miscount to draw districts creates a serious vote dilution problem. Of the 12,594 people in the district containing the New Hampshire State Prison, 11 percent are incarcerated. As a result, every group of 89 residents in this prison district has the same political power as 100 residents elsewhere in the state.

When the Reynolds Court required legislatures to apportion political power on the basis of population they could not have foreseen that a glitch in Census Bureau methodology would later undermine their groundbreaking decision. Prisons are the only industry that has its raw material counted in the decennial census. For example, tourists are counted at their home addresses, and Detroit receives no additional boost from the automobile industry’s unsold inventory.

The intent of Reynolds was to ensure that industries could not exert political influence. To do so, the Court crafted a rule stating that political power must be distributed equally on the basis of population. The Court could not have foreseen that two million people associated with one particular industry would be counted at the wrong location.

To fulfill the promise of representative democracy embodied in Reynolds, the Census Bureau and the state legislatures should develop a plan to count prisoners properly. There is no excuse that people who are easy to count by virtue of their confinement should present such difficulty.

Brett Blank is a law student and a law clerk at the Prison Policy Initiative.

International Committee Urged to Scrutinize U.S. Census Practices That Dilute Vote of Minority Populations

by Peter Wagner, December 13, 2007 Link

International Treaty Violation Also Cited

NEW YORK, Dec. 13 — The United States Census practice of counting prisoners in their districts of incarceration rather than their home districts for the purpose of establishing electoral and Congressional representation is a violation of international treaty. This month, the non-partisan public policy and advocacy centers Demos and the Prison Policy Initiative (PPI) submitted their analysis to the Committee for the Elimination of Racial Discrimination (CERD) in Geneva.

Demos and PPI urged the committee to scrutinize the racially discriminatory redistricting practice of crediting rural white counties with additional population based on the presence of disenfranchised prisoners in violation of Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination. The Demos/PPI comments were included in a larger submission [PDF] prepared by the U.S. Human Rights Network.

The United States ratified the CERD treaty in 1994, and therefore is bound under international law to work to eliminate policies that are intentionally or unintentionally racially discriminatory. The CERD treaty obligates each country to report every two years on its progress at eliminating racial discrimination. The United States submitted its report [PDF] in April and will be questioned by the CERD Committee in Geneva in March 2008. The Committee looks to individuals and organizations in each county to critique the reporting counties report and to highlight omissions.

CERD violations cited by Demos/PPI include:

• People in prison are prohibited from voting. Forty-eight of 50 states refuse to allow people in prison to vote, in violation of Article 5 of the CERD which requires universal suffrage and prohibits actions that reduce the ability of racial groups to exercise political rights. This disfranchisement disproportionately affects U.S. Blacks and Latinos, who are 60 percent of the U.S. prison population, but only 27 percent of the total population.
• State legislative districts are drawn so that prison populations are counted in the district of the prison, not their home district, even though the inmates are not permitted to vote. Even beyond banning votes by people with felony convictions, U.S. states provide additional legislative seats to what are often rural and white districts while diluting the votes of urban and racially diverse districts. This overlooked practice constitutes a separate violation of Article 5.

U.S. Supreme Court decisions require each state’s legislative districts to be substantially equal in population, providing each resident the same representation in government. To account for changing populations, each state must update its districts at least once per decade.

However, all 50 states draw their districts based on flawed data from the U.S. Census that counts prisoners as if they were residents of the prison location, not of their home addresses. Under U.S. common law, people are residents of the place they choose to reside with an intent to remain, and as incarceration is involuntary, it should not qualify as a residence. In most states, this is explicit. New York State presents a particularly egregious example, where state counting of prisoners for redistricting purposes both violates the CERD treaty and possibly the state’s constitution, which declares: “for purposes of voting, no person shall be deemed to have gained or lost a residence, by reason of his presence or absence … while confined in any public prison.”

Yet all 50 states dilute the votes of urban and communities of color by insisting on using the flawed Census data to apportion their legislative districts. According to Importing Constituents: Prisoners and Political Clout in New York, the first study to quantify the redistricting impact of disfranchised prison populations, counting people in prison as residents of the prisons and not their homes cost New York City, for instance, a net loss of 43,740 residents to prison towns outside the city. The transfer of this large, predominantly of color, non-voting population to upstate prisons, where it is counted as part of the population base for state legislative redistricting, artificially enhances the representation afforded to predominantly white, rural legislative districts.

Demos and the Prison Policy Initiative urge CERD members, and the U.S. Census, to redress these violations of apportioning state legislative districts with data that credits disfranchised Black and Latino prisoners to white legislative districts and diluting the voting strength of Black and Latino populations. This is a clear violation of the United States’ obligation under Article 5, which gives all groups the equal right to “to take part in the Government as well as in the conduct of public affairs.”

For more information on this report and the CERD treaty, state specific activity, and the US Census, visit www.prisonersofthecensus.org.

About Demos and the Prison Policy initiative:

Demos is a national, non-profit and non-partisan public policy center. Demos publishes a wide array of research and books, hosts public forums, and works across the nation with advocates and policymakers in pursuit of three overarching goals: a more equitable economy with opportunity and prosperity shared by all; a vibrant and inclusive democracy with greater voter participation and civic engagement; and a public sector with the ability to address shared challenges and work for the common good

The non-profit, non-partisan Prison Policy Initiative documents the disastrous impact of mass incarceration on individuals, communities, and the national welfare. Among its publications is the report, Importing Constituents: Prisoners and Political Clout in New York (April 2002), which documents how the transfer of a large, non-voting population to upstate prisons, where it is counted as part of the population base for redistricting, artificially enhances the representation afforded to predominantly white, upstate legislative districts.

- - - -

CONTACT: Peter Wagner, PPI, pwagner [at] prisonpolicy.org, 413-527-1333

Tim Rusch, Demos, trusch@demos.org, 212-389-1407

-30-

Budget battles endanger prison count

by Peter Wagner, October 30, 2007 Link

The New York Times editorial page reported yesterday that a budget dispute between the Bush Administration and Congress is endangering the 2010 Census. In response to the budget shortfall, the Census Bureau has canceled next year’s practice count of people in prison, military barracks, college dorms, nursing homes, and shelters. Further cuts in Census preparations are expected unless the budget is restored by mid-November.

The Census Bureau picked San Joaquin County in California and nine counties near Fayetteville, North Carolina for the practice count because these counties contain the diverse populations, large prisons and military bases where the Bureau has historically had the most difficulty.

Congress should act swiftly to prevent further cuts to Census Bureau programs, and work with the Bureau to develop a funding plan that restores the test count of prisons and military barracks.

The Prison Policy Initiative has long argued that the Census Bureau needs to develop a new methodology to count people in prison at their home addresses. With the 2010 Census rapidly approaching, the Bureau should be taking large steps forward, not being forced backwards. As the New York Times reminds us, an accurate count is essential to representative democracy.