Second Circuit again mentions Census Bureau’s prison miscount

by Peter Wagner, September 29, 2008 Link

A new opinion from the U.S. Court of Appeals for the Second Circuit makes clear that at least some members of court remain intrigued and concerned that basing legislative districts on Census counts of prison populations may constitute impermissible vote dilution.

Judge Calabresi, writing for a 3 judge panel wrote:

And there is often a significant geographic disparity with regard to groups that cannot vote. For example, in New York, many incarcerated prisoners come from urban centers but the census on which apportionment is based counts “incarcerated prisoners as residents of the communities in which they are incarcerated,” and thus may increase “upstate New York regions’ populations at the expense of New York City’s.”

Kalson v. Paterson No. 07-1243-cv 15 (2d Cir. September 9, 2008).

The Second Circuit is revisiting the issue it addressed in two en banc opinions from 2006. Muntaqim v. Coombe and Hayden v. Pataki challenged New York State’s practice of disenfranchising people in prison and people on parole, combined with historic and systemic discrimination in the criminal justice system, as violations of the Voting Rights Act. Neither lawsuit was successful, but the opinions raised the question of where people in prison reside for voting purposes and whether basing rural white legislative districts on non-resident Black prison populations amounts to impermissible vote dilution.

Muntaqim’s lawsuit against New York State’s election law was dismissed because prior to his incarceration he was a resident of California:

Only New York residents can register and vote in New York. New York Election Law section 5-102(1) provides that “[n]o person shall be qualified to register for and vote at any election unless he is . . . a resident of this state . . . for a minimum of thirty days next preceding such election.” New York Election Law section 1-104(22) defines “residence” for registration and voting purposes as “that place where a person maintains a fixed, permanent and principal home and to which he, wherever temporarily located, always intends to return.” Residence is critical since it is neither gained nor lost as a consequence of incarceration. Under both the New York Constitution and the New York Election Law, “no person shall be deemed to have gained or lost a residence, [for purposes of registering and/or voting] by reason of his or her presence or absence, while . . . confined in any public prison.” N.Y. Const. art. II, § 4; see also N.Y. Elec. Law § 5-104(1) (same). These provisions clearly establish that Muntaqim, a California resident, did not become a New York resident because of his incarceration in New York.

Muntaqim v. Coombe No. 01-7260-cv 6-7 (2nd Cir. May 4, 2006).

Hayden’s claim that New York’s felon disenfranchisement system was dismissed in a lengthy and split opinion by the 13 judge panel. But the court seized upon an issue raised in an amicus brief from the National Voting Rights Institute and the Prison Policy Initiative. We argued that New York State’s decision to used flawed Census counts that credit 43,740 mostly urban, Black and Latino prisoners to rural White Senate districts was one of the circumstances the court should considering when reviewing the Voting Rights Act claim.

The Court was clearly intrigued by this argument, and at oral argument questioned the Attorney General at length whether reliance on flawed Census counts to draw districts could in itself amount to impermissible vote dilution. In its written opinion, the court discussed the issue before directing the lower court to determine whether the prison miscount was properly raised and to rule on its merits. Unfortunately, the Hayden case did not properly state a claim, so the federal courts have not yet had an opportunity to decide the issue on the merits.

The New York Times summary of the first set of decisions is just as applicable now:

Just by calling attention to what amounted to a footnote in the advocates’ case, the judges almost seemed to be prodding the plaintiffs, and the lower court, to examine the case against counting prisoners where they are incarcerated in drawing legislative districts.

Sam Roberts, Court Asks if Residency Follows Inmates Up the River, New York Times, May 13, 2006

Note: Thank you to Brenda Wright at Demos for bringing the Kalson case to my attention.

Fuzzy Math: Is the Census Bureau creating unfair politics in Wisconsin?

by Evan Solochek, September 17, 2008 Link

This article originally appeared in the print edition of Milwaukee Magazine.

You might call Wisconsin’s 53rd State Assembly District the land of prisons. Hugging the western shore of Lake Winnebago, it includes sections of Oshkosh and also encompasses the Dodge, Waupun, Oshkosh and Winnebago correctional facilities. Some 5,000 “constituents,” or 9.5 percent of the district, are actually prisoners who don’t vote and are legal residents of another district, with many from Milwaukee.

It’s a blatant violation of US. Supreme Court rulings that require legislative districts be divided equally based on population, declares a new study of Wisconsin by the Massachusetts-based Prison Policy Initiative. Residents of the 53rd District get 10 percent more electoral power than other districts in Wisconsin, the study notes.

At the county level, prisoners have even more impact. The study found 64 percent of Adams County’s 5th and 6th districts, 59 percent of Dodge’s 31st District and 53 percent of Dodge’s 29th District are prisoners. In these districts, constituents get double the electoral power of other voters. James Layman, the Dodge 31st supervisor, who describes himself as a conservative-leaning independent, says the inequality should be addressed. “I think that’s a false presentation because I don’t represent those people,” he says of the prisoners.

But Rep. Carol Owens (R-Oshkosh), who has represented the 53rd District since 1992, scoffs at the study’s claims, calling it “grasping at straws.”

Rep. Spencer Black (D-Madison) says that if prisoners from Milwaukee were counted as residents of their home city, “Milwaukee would have lost one Assembly seat in [the 2000 redistricting], not two. The 23rd District would have been primarily in Milwaukee. Instead it’s largely suburban.”

All told, 42 percent of state prisoners call Milwaukee County home, yet are not counted toward its population. That’s roughly 8,400 people who are tallied to serve the political interests of other districts.

Black notes that when 2000 redistricting discussions were taking place, then-Gov. Tommy Thompson petitioned Washington to count Wisconsin’s out-of-state prisoners as Badger residents to prevent this state from losing a congressional seat. Thompson’s plea was rejected and Wisconsin lost the seat.

The Prison Policy Initiative suggests the U.S. Census Bureau should change how it counts people in prison by determining their city of legal residence, or that the state of Wisconsin do its own census of prisoners to adjust the national totals. But so far, neither the Census Bureau nor any states have embraced the idea, citing costs and complications.

Rep. Fred Kessler (D-Milwaukee) offers a quicker solution: Wisconsin should follow the lead of Mississippi, Colorado and New Jersey, and simply not count prisoners for redistricting purposes. But he doubts such legislation will pass as long as Republicans control either house of the legislature. “Most prisons are in rural areas and Republicans benefit from counting the nonvoting prisoners,” he says. “Look at where the prisons are — Portage, Waupun, Oshkosh. They’re not in Democratic areas.”

Given that the Supreme Court’s “one man, one vote” ruling dates to 1963, why is this issue arising only now? Prison growth has given the issue far more impact: In Wisconsin, the number of state prisoners grew from 4,000 in 1980 to over 20,000 in 2000. The growing number of miscounted citizens, the Prison Policy Institute says, causes “serious damage … to state and local democracy.”

Locked Up, But Still Counted: How Prison Populations Distort Democracy

by Peter Wagner, September 5, 2008 Link

This article originally appeared in Open Society News.

A 200-year-old glitch in the U.S. census is causing an increasingly serious problem for American democracy. Members of the booming U.S. prison population continue to be counted as residents of the city or town where the prison is located, even though they don’t vote, pay taxes, or do anything else that would make them active citizens in the community outside the prison’s walls.

This arrangement may have made sense to the founding fathers more than two centuries ago when there were few prisons and few uses for the census. By 2008, however, that has all changed. Almost 1 percent of the American adult population — and 3.6 percent of the black adult population — is temporarily behind bars, and the census has become a crucial tool for making important decisions ranging from where to build schools and hospitals to how to draw voting districts. The impact of counting people in prison in the wrong place is now simply too big to ignore. Increasingly, the practice of counting the prison population as residents in communities with prisons is distorting democracy at the state and municipal levels and fueling prison expansion projects at the expense of other forms of economic development.

According to a Prison Policy Initiative analysis of 2000 U.S. census data, there are 21 counties where at least 21 percent of the reported census population is actually composed of incarcerated people from outside the county. In 173 counties, more than half of the black population reported in the census is incarcerated. Fifty-six counties that were actually losing residents and in serious distress were recorded by the census as growing because they had opened prisons during the previous decade.

Along with distorting government priorities, crediting large portions of a population to the wrong communities makes drawing fair legislative districts impossible. Because people in prison cannot vote and remain legal residents where they lived prior to incarceration, counting them as residents in the district where they are imprisoned creates artificial populations that increase the voting strength of the prison district’s real residents and dilute the voting strength of residents in other districts. In New York State, seven rural state senate districts with large prisons would not meet the U.S. Supreme Court’s minimum population requirements without counting the prison population as local residents. Four of those prison-district senators sit on the powerful Codes Committee and oppose reforming the state’s draconian Rockefeller drug laws, which boost the state’s prison population by mandating harsh penalties. The inflated populations of these senators’ districts give them political power and little incentive to consider or pursue policies that might reduce the numbers of people sent to prison and the length of time they spend there. Republican New York State Senator Dale Volker, boasts that he is glad that the almost 9,000 people confined in his district cannot vote because “they would never vote for me.”

In New York, the state legislature relied on 2000 census data to update district boundaries and wound up drawing one legislative district in which 7 percent of people were in prison. A similar situation in Texas resulted in one district where 1 out of every 8 people was in prison. In Montana, a district padded its population by 15 percent with a prison population imported from other parts of the state. This means that every group of 85 residents who live near the prison is given the same say over state affairs as 100 residents elsewhere in the state.

The most visible support for changing the way the Census Bureau counts people in prison is coming from urban areas like New York City and Chicago that see large percentages of their population sent off to remote prisons. Yet some of the strongest support for reform is coming from rural communities that have prisons and need census data to draw legislative districts. Because county legislative districts tend to be small, a large prison can dominate the district and dilute the votes of residents elsewhere in the county. For example, the residents of St. Lawrence County, New York, who happen to live near a state prison have 25 percent more say over the future of their county than people who do not live next to the prison. Tired of how a prison distorted the county’s districts, people in St. Lawrence County signed a petition to stop the inclusion of prison populations in local districts. After the petition effort failed, county voters used local elections to throw out most of the incumbents responsible for the prison population district gerrymandering.

Senator Eric Schneiderman, a Democrat from New York City, is leading the effort in the New York State Senate for reform. “We need to deal with this, not just as a political issue, but as a moral issue,” he recently told City Limits. He went on to explain why this issue matters in his district: “Working in the legislature, we look at poor communities, like the one I represent in Washington Heights: people tend to have fewer resources for their schools, fewer resources for transportation, less access to health care. Our constituents are told to get into the political process and fight for change, and yet the same state actors dilute their vote.”

A relatively simple solution would be for the Census Bureau to collect home addresses rather than institutional addresses for people in prison in the next census. In the past, the bureau has updated its method of counting students, missionaries, overseas Americans, and other groups as changing demographics and changing needs for data demanded it. Yet the bureau moves slowly, and even though the 2010 census is two years away, time for reform is limited because the bureau has already begun planning the count. A number of states are taking steps to resolve the problem on their own. A bill is currently pending in New York that would collect the home addresses of incarcerated people and then adjust the federal census data when it arrives. This is not an ideal solution, but it is a viable option for some states and could alleviate the political distortions that come from counting transplanted prison populations as local residents.