15% of one Montana district’s population is prisoners; largest vote dilution yet seen

by Peter Wagner, January 10, 2005 Link

Our recent Importing Constituents: Prisoners and Political Clout in Montana report found one district that was almost 15% prisoners, a higher figure than in any other state legislative district yet discovered in the United States. A little known quirk in the Census counts people in prison as if they were residents of the prison town. This inflates the population of rural prison hosting areas, and shortchanges the areas most prisoners come from.

Prisoners can’t vote in Montana, and on their release they will be returning to their home communities, but their presence at the prison town in the Census dilutes the votes of their family members back home.

Susan Fox, the Legislative Services Division redistricting coordinator in Montana told the Missoula News that the report was “…. fascinating and important… I’ve never had anyone bring this up before.” In an editorial discussing the report, the Great Falls Tribune said how the Census Bureau counts prisoners is “worth re-examining before the 2010 Census-based reapportionment repeats the problem.”

The size and racial distribution of Montana counties are distorted by the Census practice. Almost 19% of Powell County’s population is in the Montana State Prison. Eighty-one percent of the Native American adults counted by the Census in the county are not local voting residents but disenfranchised prisoners from other parts of the state.

“I don’t know many prisoners that are from Deer Lodge, but that’s where the state’s largest prison is,” said Casey Rudd, director of Connections in Bozeman which helps prisoners reenter society. “Montana doesn’t let prisoners vote until they are released, and when that day comes, prisoners leave the prison town and go home,” she added.

The report identifies one district, House District 85 (Powell and Deer Lodge counties) that counts among its census population 1,308 incarcerated people. The District is almost 15% prisoners, making the votes of 85 residents in the district worth the same as 100 residents elsewhere in the state. This is 3 times larger than the maximum population variations typically allowed by the Supreme Court.

Like most states, Montana has an election law statute that says that a prisoners residence remains her or his pre-incarceration address. Yet because the Census counts prisoners as residents of the prison, state legislators who wish to draw legislative districts that reflect the actual populations of their communities are unable to do so.

Historically, the Census Bureau has proven itself to be an agency very responsive to the needs of its data users. The method of counting other special populations has changed numerous times, in each case responding to changing demographics and needs in the country. When evolving demographics meant more college students studying far from home and more Americans living overseas, the Census policy changed in order to more accurately reflect how many Americans were living where. Today, the quadrupling of the prisoner population requires the Census to update its methodology once again. Continuing to credit prison towns with the presence of the prisoners is neither a fair nor accurate way to count the population in a state.

Judge in Westchester voting recount says homeless shelter can, but jail cannot, be a residence

by Peter Wagner, January 3, 2005 Link

The winner of the New York 35th Senate district race is still undecided two months after the election. Lawyers for both sides are disputing how ballots were handled, as well as which absentee and provisional ballots should be counted in this very close race. Republican incumbent Nicholas A. Spano has a narrow lead in the recount, and he has sought to disqualify many of the uncounted ballots in order to preserve that lead.

Initially challenged were the votes of two homeless women. They testified on December 9 that they had lived at the homeless shelter long enough to make it their residence. Lawyers for both sides agreed with the judge that the women’s votes should be counted.

But 7 prisoners in the Westchester County jail were not so lucky. Lawyers for the incumbent successfully argued that a jail can not be a residence, and so the votes were disqualified. Although convicted felons serving time in prison or on parole cannot vote in New York, people awaiting trial or serving short misdemeanor sentences retain the right to vote. Thus people in jails should generally be allowed to vote. But where?

District 35 is just a portion of Westchester County, although it happens to be the portion that contains the jail. (See map at right.) But the people in the Westchester County Jail may be from anywhere in the county or perhaps even outside of the county. As I’ve argued previously, the New York Constitution is clear that a prison is not a residence:

“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.” (New York State Const. Article 2, Section 4.)

It is unfortunate that the people who processed the voter registrations for these 7 prisoners and sent them the absentee ballots didn’t make it clear that a prison can be a temporary mailing address but not a voting residence. Those 7 prisoners had the right to have their votes counted, but not as residents of the jail. This no doubt left the Judge with a dilemma: Can the votes of these 7 prisoners for senator in District 35 be counted when we don’t even know what district they live in?

The Judge apparently decided that it wasn’t necessary to bring the prisoners in to court to investigate further and just decided to exclude the ballots. I don’t know whether investigating further was a factual or legal option, but the result is quite consistent with the idea that election districts should be built around the concept of residence as the place you willingly choose to be. A prison cannot be a residence because the people there are confined against their will. A prisoner’s residence remains the place they lived prior to incarceration.

The only exception to that rule is the Census Bureau’s method of assigning residence during the decennial census. The Census counts prisoners as residents of the facility, but it would have been hard for someone to use the Census as a reason to count these 7 ballots. The Census Bureau’s method of assigning residence to prisoners predates both the modern concept of redistricting and the New York State Constitution’s explicit declaration that a prison is not a residence.

We can draw at least two lessons from the crisis in District 35:

1. Election officials should be given clearer guidelines on absentee ballots from enfranchised jail inmates so that their ballots may be counted in the proper location and not discarded.

2. The Census Bureau should change its method of counting incarcerated people, and start assigning them to their pre-incarceration homes. District 35 was built in part around the Census counts of the jail because that was the only population data available to the New York Senate. But with both the incumbent and a Judge saying that the prisoners reside elsewhere, the Census should start counting them elsewhere as well.

Note: Thanks to Jeff Wice, Alec Ewald, and Rick Hasen’s Electionlawblog.org for in various ways bringing Lisa W. Foderaro’s “Judge Hears Testimony of Improper Voting by Poll Workers in a Westchester Race” article in the December 10, 2004 New York Times to my attention.