New York proposes to fix the Census distortion

by Peter Wagner, February 28, 2005 Link

On February 25, New York Deputy Minority Leader Senator Eric T. Schneiderman introduced S2754 to prevent the way the U.S. Census counts prisoners from distorting democracy in New York.

The U.S. Census counts prisoners as if they were residents of the prison location rather than of their pre-incarceration homes. Like most states, New York currently relies on Census Bureau data when drawing its legislative districts, but its constitution defines residence quite differently than the Census. The New York constitution reads that “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.”

Many states have similar constitutional clauses, but until recently, states were unaware that by relying on Census Bureau data they were violating their own constitutions. The Census Bureau counts prisoners this way as a result of an outdated practice that predates modern uses of Census data for intra-state redistricting. There is currently a national movement to convince the Census Bureau to change how it counts prisoners, but states like New York and Illinois are showing that they are not hostage to Census Bureau counting decisions. As long as a state began planning early, it would be possible to adjust Census counts of prisoners prior to redistricting.

The New York bill requires the State Board of Elections to create a specially modified version of the Census Bureau’s redistricting data for use in congressional, state senate and state assembly redistricting. The various corrections agencies in the state would be required to submit home address information to the Board of Elections, who in turn would change the Census data so it would reflect New York’s prisoners being counted at home rather than at the prison location. The Legislative Task Force on Demographic Research and Reapportionment would then be required to use this corrected data in drawing new districts.

This state-based approach isn’t as simple as a Census-based fix, but it avoids the harm first documented in my Importing Constituents: Prisoners and Political Clout in New York report. While 66% of New York’s prisoners come from New York City, 91% are incarcerated in the upstate region. Basing legislative districts on prisoners’ places of incarceration unconstitutionally transfers the geographic disparities in incarceration to the electoral system. In one assembly district, 7% of the reported Census population is actually prisoners from other parts of the state. The votes of each group of 93 residents in that district are unconstitutionally equated with the weight of 100 voters elsewhere in the state who do not happen to live near a prison. In the New York Senate, 7 districts qualify as complete districts only by taking in large numbers of prisoners from other parts of the state. This is exactly the type of distortions in political empowerment that our modern conceptions of democracy under the “One Person One Vote” principle were intended to eliminate.

The best solution in terms of simplicity would be for the Census Bureau to update its methodology and start counting prisoners as home. But if the U.S. Census fails to change how it counts prisoners in the 2010 Census, this bill could ensure that future New York state legislative districts will be drawn based on population counts that match the state constitution and common sense conceptions of residence.

Census miscounts prisoners, dilutes urban voting power

by Peter Wagner, February 21, 2005 Link

Back in 2000, the Census Bureau counted prisoners as if they actually lived in the town that contains the prison. According to recently published analysis, this administrative quirk reduced the population of the communities where most prisoners come from and swelled the population of the rural communities that host prisons. Each decade, census population data is used to draw legislative districts, so prisoners makes prison towns seem more populous — and therefore receive more political clout — than their population should have warranted.

Making matters worse, all states but Maine and Vermont bar state prisoners from voting, so prisoners are unable to influence the often pro-prison-expansion legislators whose clout they enhance. At the same time, the urban legislators who so frequently favor proven alternatives to incarceration such as drug treatment see their population and political clout diminished.

According to my series of “Importing Constituents: Prisoners and Political Clout” reports, most state constitutions declare that incarceration does not change an individual’s residence. A prisoner’s residence remains the place that he or she lived prior to incarceration. At the same time, all states currently rely on federal census data for their redistricting process. Districts are redrawn each decade so that each district contains the same number of people living there. Having equal numbers of people in each legislative district ensures that each person in that district has equal access to government. This concept is known as the “One Person One Vote” rule, but it breaks down when the U.S. Census data does not reflect where the actual population of the state resides.

Alongside the quadrupling of the incarceration rate in this country has been a growing disparity in where most prisoners come from and where they are incarcerated. According to my first report in New York State, 66% of the state’s prison population is from New York City, but 91% of the state’s prisoners are incarcerated in the upstate region. The Census method denied New York City credit for 43,740 of its residents and instead credited this population to distant and often politically hostile communities.

Even more critical than this distortion in regional political power is the impact on the political power of Blacks and Latinos in the state compared to Whites. New York State is 62% White, but 82% of the state’s prison population and 93% of the drug offenders are Black or Latino. Yet virtually all — 98% — of the prison cells are located in state Senate districts that are disproportionately White for the state.

As a result, disenfranchised Black and Latino prisoners from New York City are swelling the population base and political clout of the upstate politicians that are most fervently opposed to ending the unfair and unjust Rockefeller Drug Laws.

The Census counting method creates problems for democracy in virtually every state. Sixty percent of Illinois’ prisoners call Cook County (Chicago) home, yet 99% of the state’s prison cells are outside the county. Los Angeles County supplies 34% of California’s prisoners, yet only 3% of the state’s prisoners are incarcerated there. Philadelphia is the legal residence for 40% of Pennsylvania’s prisoners, but the County contains no state prisons. Wayne County (Detroit) is home for 20% of Michigan’s population. Almost 30% of the state’s prisoners are from Wayne County, but only 11% of the state’s cells are there.

In Texas, one rural district’s population is almost 12% prisoners. Every group of 88 residents in that district are represented in the state House as if they were 100 residents from urban Houston or Dallas. Even states with lower incarceration rates see serious distortions in their democratic processes. In one Montana District, 15% of the population is disenfranchised prisoners from other parts of the state.

When the Supreme Court, in 1963, required state legislative districts to be divided on an equal population basis, it explained its rationale. “[L]egislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests.” The principle is that “[T]he weight of a citizen’s vote cannot be made to depend on where he lives.”

Prisoners are external populations that are not “traditionally” rural in any sense of the word. Allowing communities to take in populations by force, just to benefit at the state legislature, violates any sense of equal protection or fundamental fairness.

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 growth in the prisoner population requires the Census to update its methodology once again. To be fair and accurate, the Census Bureau needs to start counting prisoners at their home addresses.

This article was originally prepared for the March issue of the Coalition for Prisoners Rights Newsletter.-Peter Wagner

Illinois bill reflects growing frustration with Census counts of prisoners

by Peter Wagner, February 14, 2005 Link

On February 2, Illinois Deputy Majority Leader Representative Arthur L. Turner introduced the Prisoner Census Adjustment Act to prevent the current U.S. Census practice of counting prisoners as residents of the prison location from distorting democracy in Illinois. While other advocates have been working to convince the U.S. Census to start counting prisoners as residence of their pre-incarceration homes, Chicago-based attorney Dan Johnson-Weinberger has been working with Representative Turner to craft a state-based solution to ensure that future Illinois legislative districts match the actual population of Illinois communities.

The bill is an interesting state-level approach to the national problem, similar to how Kansas currently adjusts Census counts of students and military, and similar to how Representative Dutton proposed that Texas adjust census counts of prisoners.

The Illinois bill requires the Secretary of State to create a specially modified version of the Census Bureau’s redistricting data for use in Illinois. The various corrections agencies in the state would be required to submit home address information to the Secretary of State, who in turn would change the Census data so it would reflect prisoners being counted at home rather than at the prison location.

This state-based approach avoids the harm seen in many states where districts are drawn using Census data to be 7% (in New York) 13% (in Texas) or 15% (in Montana) prisoners. (Research in Illinois is ongoing.) When a large percentage of a district’s population is not a resident of that area, the actual population of the district is smaller than it should be, resulting in a significant boost in the weight of a vote in that district. And conversely, when prisoners are counted outside of their home communities, the votes of the other members of that community see their votes diluted.

This bill is further documentation that states want incarcerated people to be counted as residents of their homes. The simplest, cheapest and most accurate place to change this policy is at the U.S. Census Bureau. But what Illinois is showing is that if the Census Bureau fails to act before the 2010 Census, states can, if they start planning now, avoid a skewed redistricting process.