Federal court strikes down Georgia legislative districting plan

by Peter Wagner, January 11, 2004 Link

On February 10, 2004, a three judge panel struck down Georgia’s legislative redistricting plan. The case is Larios v. Cox. Traditionally, the rule has been that deviations in the size of state legislative districts that are less than 10% do not require a justification. (Greater deviations require justification that a legitimate state interest, such as preserving community boundaries, was served.)

Here, the Court ruled that a deliberate and consistent attempt to dilute the votes of suburban Georgian districts was impermissible under the Equal Protection principle. The 10% rule could not be used to protect districts deliberated designed to skew the weights of different regions in violation of Reynolds v. Sims and the one person one vote principle.

If upheld, this decision may have several powerful effects. First, it would draw more attention to the New York Senate’s legislative districts, which were drawn to deliberately overpopulate urban districts (especially Queens County) and to underpopulate rural districts. Similarly, as I wrote in Importing Constituents: Prisoners and Political Clout in New York, the regional bias implicit in relying on Census Bureau miscounts of prisoners may also come in to question:

The fact that the Queens districts are all equally oversized, right on the maximum border of illegality, suggests that the deviations were not driven by a concern to protect political boundaries, but rather to weigh different communities differently. The spokesperson for Senator Dean Skelos, the head of the senate’s redistricting task force, has defended the population deviations by telling the New York Times: “It’s legal, what more do you want?”"[25] Whether such a concerted effort to push the limits of White v. Regester has ever been tested in Court is unclear, but combined with the counting of urban prisoners as rural residents, the problem of unequal district sizes in the senate is even larger than it appears on first glance.

See also Rick Hasen’s analysis on ElectionLawBlog and read the court’s opinion in Larios v. Cox

Concern for prisoner-count based skew of democracy dates back to at least 1963

by Peter Wagner, January 5, 2004 Link

The use for legislative redistricting of Census counts of prisoners at the prison rather than at home is of critical importance because the number of incarcerated people is now so high. I’ve previously written that prior to the 1990 Census, prisoners were not explicitly excluded from Census counts because incarceration was much less frequent than it is today. But the concern that it is fundamentally unfair to allow an artificial population to skew an otherwise equal distribution of political power is not a new one.

In 1963 the National Municipal League’s Model State Constitution included a provision for excluding prisoners and similar disenfranchised populations:

Section 4.04 Legislative Districts … In determining the population of each district, inmates of such public or private institutions as prisons or other places of correction, hospitals for the insane and other institutions housing such persons who are disqualified from voting by law shall not be counted….

The National Municipal League was correct to identify this problem back when the nation’s prisons held less than 218,000 prisoners. In the 1960s, it appeared that the total prisoner count was declining, and yet this issue was important enough for the organization to include in its model state constitution. Today, with more than a million additional prisoners taken from their homes and counted elsewhere, the need to prevent a census-based shift in democratic decision making is even greater.

Thanks to Professor James Gardner for sharing this information about the National Municipal League.

UPenn Law Review: Defying one-person, one-vote: Prisoners and the “Usual residence” principle

by Peter Wagner, January 2, 2004 Link

Rosanna M. Taormina has published a great article, Defying one-person, one-vote: Prisoners and the “Usual residence” principle, [PDF] in the University of Pennsylvania Law Review.

The piece concludes:

In this Comment, I have examined the propriety of counting imprisoned persons at their prison address for redistricting purposes. I have suggested that this practice runs afoul of both constitutional and statutory requirements. The Census Bureau’s “usual residence” principle, as applied to disenfranchised prisoners and former prisoners, cannot be squared with the Supreme Court’s one-person, one-vote jurisprudence. The Court has refused to protect prisoners stripped of the most fundamental right accorded citizens of a democracy–the right to vote. It is time for either Congress or the Court to protect law-abiding citizens from state legislatures that unfairly take advantage of the existence of a disenfranchised population when creating “equal” congressional voting districts. “We the People” demand nothing less.

Rosanna M. Taormina, Defying one-person, one-vote: Prisoners and the “Usual residence” principle [PDF] 152 U Pa L. Rev. 431, 459.