20 years ago, California’s Attorney General endorsed counties’ response to prison count
by Sue Gershon, November 30, 2010
Most California counties that contain large prisons take a sensible approach to creating their county supervisor districts. These counties omit the prison populations from their calculations when drawing supervisor districts. One reason why the counties don’t have a prison-based gerrymandering problem might be the advice that the California Attorney General’s office gave them during the 1990 redistricting process.
In that opinion letter, the state Attorney General’s office assured counties that they are free to exclude prisoners from the total population for purposes of redistricting, and that such a policy “embodies a legitimate state interest of maintaining voting strength among voters of the various districts.”
The opinion does an excellent job of laying out many of the reasons why it is not only permissible, but preferable, for county governments to exclude incarcerated populations when creating electoral districts:
[I]nclusion of [state prisoners and those in juvenile custody facilities] might well create an imbalance in voting strength and a dilution of voting power among district voters. For example, if a district has 20,000 in population of which 5,000 are state prisoners, the non-prisoner population in that district will have greater voting power in selecting a supervisor, as well as greater access to that supervisor, than the non-prisoner populations in the other four districts. A vote in the district containing the state prison will necessarily count more; in comparison, the voting power of persons in the other districts will be diluted.
The opinion hits on a crucial point when it notes that “[c]laims of minority vote dilution [caused by including prisons for districting purposes] will be especially significant if the prisoner and ward populations are not reflective of the racial and language minority populations of the county as a whole.” As has been well documented, this is in fact the situation in many counties which house significant prison populations.
Prison populations that differ from the racial makeup of the counties which house them cause two significant problems of minority vote dilution. First, and perhaps more obviously, the political power of communities which house prisons, which are often disproportionately white, is inflated by the prison populations, which are often disproportionately non-white. A second consequence is that districts which appear to offer minority voters an opportunity to elect a representative of their choice may not actually provide such an opportunity, because incarcerated individuals, who cannot vote, are be counted in those districts. However, the appearance of a majority minority district may mean the real, non-imprisoned minority population is split into more than one district, and therefore deprived of the ability to elect a candidate of their choice. This was the situation in Somerset County, Maryland, a situation which will be remedied by Maryland’s new law, which ensures that incarcerated individuals will be counted as residents of their home addresses in future redistricting cycles.
In addition to its careful consideration of the strong justification for excluding prison populations for redistricting purposes, the state Attorney General’s opinion also addresses some of the technical concerns regarding constitutional and statutory rules about the districting process. It is well worth a read by anyone interested in protecting real democracy in California or any other U.S. state.