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Florida County Commissioners to Face Big Decisions at Redistricting Time

by Lauren Marcous, August 2, 2010  

Rural counties in Florida are eagerly awaiting the release of the 2010 Census data so they can begin the process of redrawing County Commissioner districts. But when county commissioners download the data early next year, they may be in for an unfortunate surprise. 140,000 Florida residents have been counted in the wrong place.

The U.S. Census Bureau counts incarcerated people at the correctional facilities where they are locked up, rather than at their last known home address. Under U.S. common law, people are residents of the place they choose to reside with an intent to remain. As incarceration is involuntary, it should not qualify as a residence. In most states, this is an explicit statutory law. In Florida it is not; however, in other contexts, state courts have ruled that residency is not established ‘at the site of a prison solely by virtue of incarceration.’ B.C. Cook & Sons Enterprises, Inc. v. R & W. Fruit Co., 512 So.2d 980 (Fla. 1987).

The legal discrepancy between U.S. Census counts and legal residence has created a big problem for one county in Florida. During the last redistricting process in 2001, Gulf County was faced with the prospect of creating a district where 80% of the people were behind bars. Billy E. Traylor, commissioner of District 2, where the prison is located, was in favor of counting the prison population. Other members of the Board of County Commissioners felt differently, including Nathan Peters, Jr. At the time, Peters said, “they don’t pay taxes, they don’t have the right to vote, there is no reason to count them.”

Unsure of how to proceed, the Gulf County Commissioners contacted the Florida Attorney General for his opinion. Attorney General Robert A. Butterworth said that Gulf County must include the prison population when redistricting. Unwilling to draw a district that gave some people 5 times as much political influence as others, the Gulf County Commissioners decided to reject both the Attorney General’s opinion and the Census Bureau’s method of counting prison populations.

Gulf County is not alone in rejecting the Census Bureau’s method of counting incarcerated people in prison communities. Other counties, including Columbia County, Hamilton County, Holmes County, and Madison County, also excluded the prison population before drawing commissioner district boundary lines.

Unfortunately, not all counties had the foresight of Gulf County. Other counties either failed to notice that prison populations were distorting their counts, or didn’t realize they had the legal or technical ability to remove the prison populations. Those that included the prison population include Baker County, Calhoun County, Hardee County, Wakulla County, and Jefferson County. The distortion is dramatic in some counties, like Calhoun County, where almost 50% of Commissioner District 4 is comprised of incarcerated individuals, giving each resident nearly twice as much representation as residents in other districts without prisons.

The Prison Policy Initiative is tracking counties that have serious prison-based gerrymandering problems and those that reject the Census’s prison counts. Of the Florida counties with large prisons, the organization hasn’t yet determined how 8 counties (Bradford County, DeSoto County, Dixie County, Franklin County, Sumter County, Taylor County, Union County, and Washington County) responded to the Census’s prison miscount.

The ideal solution to the problem of prison-based gerrymandering is simple. The Census Bureau needs to count incarcerated individuals at their last known residential address and not in prison cells. Although it’s too late for this to happen in time for 2011 redistricting, it’s not too late for the 2020 Census. Counties like Gulf, Columbia, Hamilton, Holmes, and Madison that are already removing prison populations should continue to do so in 2011. In the meantime, other counties should follow their example.

3 Responses

  1. DM says, 13 hours, 50 minutes after publication:

    Why not count them where their families are they pay taxes in those counties and the counties that they visit the prisons.. They should get something back from all the money they pump into the prison system!

  2. C. P. Miller says, 1 year, 2 months after publication:

    If any County receives any kind of revenue off of the prison population then they should be counted. In small Counties like Jefferson County Florida where it took a Federal Lawsuit to create single member districts, with one being a minority,& one being close to a toss up, without using the prison population it is very hard to make that happen given that people are counted in blocks. Gerrymandering and stove piping is not allowed. People who are seventeen & a half years of age & under cannot vote nor can the prison and convicted felons. So how would this impact the census count if these people are not counted because they can’t vote in the County that they are in.

    1. Peter Wagner says, 1 year, 2 months after publication:

      Most if not all federal and state funding formulas already exclude the prison populations when setting grants. Each grant agency sets their own criteria for their own uses. Counties can do the same for redistricting. They aren’t required to use the Census as-is for redistricting. And at the same time, any changes that a county makes to the census when creating a districting plan will not effect the Census Bureau or any federal or state agency. Florida counties need to pick the data set that best matches their interests.

      Generally speaking, people under 18 and people with lifetime disenfranchisement are evenly spread throughout a county. But prison populations are residents of other parts of the state, and they are concentrated in the prisons in just one part of the county.

      We looked at the 2010 Census data, and we note that the prison in an area currently represented by a White commissioner. And it is possible to create a majority-African-American district without including the prison population by drawing a district very similar to the District 2 drawn 10 years ago. (Inversely, there are strong civil rights reasons to consider excluding the prison population. One would not want to create a district that appeared to be majority-African-American but whose voting population was majority-White like Somerset County, Maryland did.)

      Are you drawing a different conclusion from the data and your knowledge of the county? Let’s talk.

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    Executive Director Peter Wagner, Board Member Amanda Alexander and Advisory Board Member Bruce Reilly will present on a panel entitled “The fight against mass incarceration: Combining litigation and policy work for systemic change” at RebLaw at Yale Law School from 3-4:30pm.

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  • February 20, 2015:
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