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Federal appeals court urged to consider census-based dilution of minority voting strength when weighing legality of prisoner disenfranchisement scheme

by Peter Wagner, January 31, 2005  

The National Voting Rights Institute and the Prison Policy Initiative have filed a brief with the U.S. Court of Appeals for the Second Circuit highlighting the New York State legislature’s racially discriminatory redistricting practice of crediting rural white counties with additional population based on the presence of disenfranchised prisoners in upstate prisons. The Court of Appeals for the Second Circuit is hearing the case of Muntaqim v. Coombe, a case brought by an African-American prisoner alleging that racial disparities in disenfranchisement of prisoners and parolees in New York violate Section 2 of the Voting Rights Act. The friend-of-the-court brief filed by the National Voting Rights Institute and the Prison Policy Initiative argues that the Court should consider the redistricting implications of disenfranchisement as part of the “totality of circumstances” which must be examined under the Voting Rights Act.

New York State is majority White (62%), but its prison population is majority Black and Latino (82%), so disenfranchising prisoners and parolees results in a disproportionate bar to Black and Latino political participation. In their brief, the National Voting Rights Institute and the Prison Policy Initiative provide new information to the court showing how New York State’s disenfranchisement practices combine with its redistricting practices to diminish the voting strength of persons of color and communities not under direct criminal justice control.

In drawing state legislative districts, New York uses Census Bureau data that counts the state’s mostly urban and minority prisoners as residents of the mostly white and rural prison counties rather than as residents of the home communities where they resided prior to incarceration, where they are deemed legal residents for most other legal purposes. Several upstate legislative districts lack sufficient population to meet accepted one-person, one-vote standards without counting disenfranchised prisoners as part of their population base. At the same time, heavily minority districts in New York City would in all likelihood be entitled to additional representation if prisoners were counted as residents of their home communities for purposes of redistricting.

“Section 2 of the Voting Rights Act requires the Court to examine the ‘totality of the circumstances’ when judging the legality of prisoner disenfranchisement,” said Brenda Wright, managing attorney of the non-profit National Voting Rights Institute. “New York’s decision to credit disenfranchised prisoners to largely white counties, rather than their home communities, is a critical example of racial discrimination the court should consider.”

The brief argues that New York’s practice does have one historical parallel that the Court should be disinclined to follow. Says Prison Policy Initiative Assistant Director Peter Wagner: “The practice bears a striking resemblance to the original ‘Three-Fifths’ clause of the United States Constitution, which allowed the South to obtain enhanced representation in Congress by counting disenfranchised slaves as three-fifths of a person for purposes of congressional apportionment.”

In Muntaqim v. Coombe, the Second Circuit has taken the unusual step of granting in banc review by all active judges on the Court, after a three-judge panel initially ruled against the plaintiff and held that Section 2 of the Voting Rights Act does not permit a challenge to prisoner disenfranchisement. The amicus brief of NVRI and the Prison Policy Institute, filed on January 28, 2005, is available in PDF on NVRI’s website at: http://www.nvri.org/about/new_york_state_policies.shtml and in hypertext at http://www.prisonpolicy.org/reports/muntaqim.html.

The National Voting Rights Institute is a nonprofit, nonpartisan legal center. Through litigation and public education, NVRI seeks to make real the promise of American democracy that meaningful political participation and power should be accessible to all regardless of economic or social status. The Prison Policy Initiative conducts research and advocacy on incarceration policy. Among its publications are a 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:

Brenda Wright, National Voting Rights Institute (617) 624-3900, ext. 13

Peter Wagner, Prison Policy Initiative