New York proposes to fix the Census distortion

by Peter Wagner, February 28, 2005  

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 The Census Bureau counts prisoners this way as a result of an outdated practice that predates modern uses of Census data for intra-state redistricting.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.

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