Census treatment of incarcerated felons unfairly dilutes voting strength of non-prison communities

by Peter Wagner, June 22, 2005 Link

NEWS RELEASE JUNE 22, 2005 FOR IMMEDIATE RELEASE CONTACT:Brenda Wright, National Voting Rights Institute (617) 624-3900, ext. 13 Peter Wagner, Prison Policy Initiative (413) 527-1333

Today, the full U.S. Court of Appeals for the Second Circuit is hearing arguments in two cases alleging that New York’s felon disenfranchisement laws violate the Voting Rights Act and the U.S. Constitution (Muntaqim v. Coombe and Hayden v. Pataki). The National Voting Rights Institute and the Prison Policy Initiative have filed an amicus brief with the Court arguing 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. The brief highlights 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.

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 non-incarcerated persons of color in the prisoners’ home communities.

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.

The brief argues that New York’s practice has an historical parallel that the Court should be disinclined to follow. “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,” says Prison Policy Initiative Assistant Director Peter Wagner.

Brenda Wright, managing attorney of the National Voting Rights Institute and the author of the brief, says: “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.”

In the two cases, the Second Circuit has taken the unusual step of granting in banc review by all active judges on the Court. The lower courts initially ruled against the plaintiffs 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 on NVRI’s website at: http://www.nvri.org/about/new_york_state_policies.shtml and in hypertext on the PPI site 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 , 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.

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Census counts of prisoners distort decision making on crime policy

by Peter Wagner, June 1, 2005 Link

The American system of democracy distributes political power to the people by the means of legislative districts, which are redrawn after the Census each decade to ensure that each district contains the same number of people. When these district lines are fairly drawn around different “communities of interest”, the system works quite well at allowing the citizenry to exert political power in proportion to their numbers. But the discussion over how to best draw the lines breaks down when the underlying Census data does not reflect the actual populations of our communities.

The Census Bureau counts disenfranchised prisoners as if they were residents of the places where they are temporarily and involuntarily incarcerated. One of the most visible impacts on the political process is in New York’s 59th Senate District represented by Senator Dale Volker. Senator Volker claims his stance as the state’s staunchest defender of the draconian Rockefeller drug laws is in the interests of his constituents. But in 2001, only 3 people were sentenced to state prison for drug offenses from Senator Volker’s home Wyoming County. Even when I compensated for the huge population difference between New York City and Wyoming County, I found that New York City residents were 8 times as likely to be sent to prison for drug offenses in 2001 than residents in Wyoming County.

The first map shows the number of drug sentences imposed per year in each county on a per-capita basis, so comparisons on the use of incarceration for drugs can be made regardless of population. The data doesn’t directly say how prevelant drug abuse is in a county, but a quick look at the counties in Senator Volker’s 59th district shows either that drug abuse is not a problem in his district, or if it is, that those communities have made a choice to instead rely on less punitive and more effective means of addressing addiction. Sending the residents of Wyoming County to prison is clearly not a priority.

As the second map shows, many upstate New York counties have sizable prison populations that make the counties appear in the Census 5 or 10% larger than they really are. This distorts how legislative districts are drawn and the very purpose of districts.

As the Supreme Court explained when it established the “One Person One Vote” rule and declared unconstitutional a system that weighted votes differently on the basis of where voters lived: “Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests.” Reynolds v. Sims, 377 US 533 (1964) at 562.

The Supreme Court was not challenging the fact that individual legislators favored the economic and regional interests of their home counties; rather the Supreme Court was declaring unconstitutional a system that distributed political power by anything other than population.

If the residents of a district wish to advocate for more prisons, that is their right. But under the Constitution, every group of 100 such residents should be given the consideration of 100 residents elsewhere in the state. Because Senator Volker’s true district population is 7% smaller than it should be, the current situation in New York is that every group of 93 residents in the 59th District is given the same clout as 100 residents from the urban districts that do not have large prisons.

That dilution of urban voting strength is precisely what the One Person One Vote rule was designed to prevent.