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Prof. Karlan: Underpopulated rural districts use prisoners as “inert ballast” to gain population

by Peter Wagner, December 27, 2003  

Pamela S. Karlan of Stanford Law School has a great new article about felon disenfranchisement that discusses the census issue:

The year 2000 involved another event that highlighted the racially salient political consequences of the war on crime and its attendant disenfranchisement of large numbers of minority citizens. Under the “usual residence rule,” the Census Bureau counts incarcerated individuals as residents of the jurisdiction in which they are incarcerated. In many states, this results in largely white, rural communities having their population totals increased at the expense of the heavily urban, overwhelmingly minority communities from which most inmates come. This reallocation of population has at least two important effects. First, because a substantial amount of federal and state aid to localities is based on population, heavily minority communities lose revenue: Chicago, for example, stands to lose $88 million over the next decade because roughly 26,000 Chicagoans, 78 percent of them black, were serving time in downstate prisons at the time of the 2000 census. Second, because electoral districts are also based on population, people in prison serve as essentially inert ballast in the redistricting process. They enable the underpopulation of rural, overwhelmingly white districts relative to urban, heavily minority ones, thereby potentially changing the overall composition of legislative bodies. For example, in New York State, seven conservative upstate Republicans represent state senatorial districts that comply with one-person, onevote only because incarcerated prisoners are included within the population base. But these officials are neither descriptively nor substantively “representative” of their inmate “constituents.” As a result, many commentators have compared the inclusion of incarcerated inmates in the population base of the jurisdictions where they are incarcerated to the notorious “three fifhs” clause in the original Constitution, which enhanced the political clout of slave-holding states by including slaves in the population base for calculating congressional seats and electoral votes.

Pamela S. Karlan, Convictions and doubts: Retribution, representation, and the debate over felon disenfranchisement (Internal citations omitted) Stanford Law School

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