This is a letter I sent to Robert Karr, a City Councilor in McAlester Oklahoma about why prison-based gerrymandering is wrong and what the city should do about it. The city believes that its new charter requires it to engage in prison-based gerrymandering, and there has been a lot of public outcry about it. We wrote about the controversy in April and September.
The McAlester News summarized Mr. Karr’s position back in April:
“It seems this wouldn’t be fair,” said Ward 4 Councilman Robert Karr. “Prisoners can’t vote so I can’t really represent them.”
Not only would it be hard for an elected official to represent inmates, the smaller voting block would dilute the votes of voters in the other five wards.
“I think it is fair the way we have done it in the past,” said Karr. “Hopefully common sense will prevail.”
As my letter attests, Mr. Karr has not yet succeeded, but I’m not giving up hope just yet. — Peter Wagner
October 25, 2011
Dear Mr. Karr,
Thank you for your call on Friday and for your interest in my thoughts on McAlester’s voting wards.
By way of background, I am the Executive Director of the Prison Policy Initiative. For the last decade, I have been working with state and local governments and the U.S. Census Bureau to address a problem the New York Times has labeled “prison-based gerrymandering.”
The Census Bureau counts incarcerated people as if they were residents of the census blocks that contain correctional facilities, rather than as residents of their legal home addresses. When legislative bodies use Census counts of correctional facilities to draw legislative districts, they unintentionally grant extra representation to districts that contain prisons, and consequently dilute the votes of every resident of every district without a large prison.
This issue is particularly important in small cities like McAlester because your districts are not significantly larger than the prison population. A single prison can have a massive impact on how political power is distributed in a small city or county.
In the last decade working on this issue, I’ve found more than a hundred counties and cities that have refused to use prison populations when redistricting. Except for in the three states, the dramatic instances of prison-based gerrymandering generally exist only where officials are either unaware of the problem, or where they are unaware of the legal solutions commonly utilized by other cities and counties. Your city is an interesting exception.
In the last year I have written to more than two thousand county commissioners and city councilors who have prisons in their communities to let them know that they are not the first to face this problem. I also closely monitor Google News for any sign of a community that for one reason or another I was not in touch with. I discovered the extensive articles in the McAlester News about citizens being unhappy with the idea of the prison distorting how districts are drawn in your city. The volume of outcry from McAlester residents in opposition to counting the prison population makes this situation all the more tragic.
Your city is poised to engage in one of the most dramatic examples of prison-based gerrymandering in the nation because the National Civic League’s Model City Charter, on which you based your charter, wasn’t created with these circumstances in mind.
According to my analysis of your proposed districts, about 57% of the 4th ward will consist of people who are not a part of your community. They aren’t allowed to vote, and if they could vote, they would have to vote via absentee ballot in another part of the state. Using the prison population as padding inflates the weight of a vote cast in the 4th ward, and dilutes the votes of every resident in every other district.
The Supreme Court requires regular redistricting to ensure that all residents have the same access to government. The Court said in one of the first major “one person one vote” cases that the “weight of a citizen’s vote cannot be made to depend on where he lives.” Unfortunately, by relying on the U.S. Census to draw its city council wards, McAlester is going to be declaring that a vote cast in the 4th Ward is worth more than twice as much as one cast elsewhere.
And of course, from speaking to you and others, I’ve learned there is also a different harm to including the prison: McAlester excluded the prison population when drawing the wards after the 2000 Census, so the change in the source of your redistricting data will require a radical reshuffling of the districts. I note that the prison change will have a far more dramatic impact on the McAlester districts than actual population growth in the city.
I’d like to discuss a couple of myths and then suggest some solutions that may be helpful to you.
From reading the McAlester News, I see that there are a few myths I should address first:
Myth: Federal funding would be affected by excluding the prison. Federal funding is distributed by a series of complex formulas that do not use municipal redistricting data. For this reason, McAlester was not negatively affected during the previous decade when it excluded the prison population from its districting calculations.
Myth: Federal law requires the use of the Census. Most places rely on the Census because it is free and of good quality, but the Supreme Court has said that state and local districts are not required to use Census data in redistricting.
The Court also explained:
Neither in Reynolds v. Sims nor in any other decision has this Court suggested that the States are required to include … persons denied the vote for conviction of crime in the apportionment base by which their legislators are distributed and against which compliance with the Equal Protection Clause is to be measured. The decision to include or exclude any such group involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere. Burns v. Richardson, 384 U.S. 73, 92 (1966) (emphasis added)
More than 100 counties and municipalities, including Greer County, Oklahoma, currently exclude the prison populations when drawing county and municipal district lines.
Myth: State law requires the use of Census data. While a handful of states do have provisions like this, I am not aware of one in Oklahoma. If you discover the citation for one, I would be eager to discuss this with you.
I can see three possible solutions to the apparent conflict between the City Charter and the federal principle of One Person One Vote. The first two are inspired by the actions of other cities and counties in similar circumstances. They depend on a technical reading of the Charter and you would certainly want to consult the City Attorney. The last solution addresses a charter amendment.
Massachusetts residents are headed for ten more years of vote dilution due to prison-based gerrymandering unless swift measures are taken to implement a solution. This morning, the Prison Policy Initiative and Demos submitted testimony to the Special Joint Committee on Redistricting urging them to immediately implement six changes to their redistricting plan that would mitigate the harm of prison-based gerrymandering.
The current redistricting cycle offered the Committee a unique opportunity to use the allowable deviations from ideal district size to compensate for the the way prison-based gerrymandering skews the allocation of political clout. Unfortunately, the Committee missed this opportunity.
But not only has the Committee failed to implement a workable solution, their plan actually makes the problem of prison-based gerrymandering worse. In fact, our analysis found that eight proposed districts only meet minimum population requirements by counting the people incarcerated within those districts as constituents:
In the House, there are 4 districts that meet federal minimum population requirements only by claiming incarcerated people as residents. The 7th Middlesex, 37th Middlesex, 8th Plymouth, and 12th Worcester districts each have actual resident populations that are 5.6% to 7.4% smaller than the average district in the state. Votes cast in these districts that contain prisons will be worth more than those cast elsewhere. In each of these districts, the solution would have been to add additional population so that each is as close to +5% over ideal population size as possible. This “overpopulation” would thus offset to some extent the impact of including the incarcerated population in the district count. Instead, the deviations in these districts range from -5.6% to -7.4%.
We also note that the 4 smallest Senate districts each meet federal minimum population standards only by claiming incarcerated people as constituents. The facilities of MCI Norfolk, Baystate, Pondville and part of Cedar Junction were included in the Norfolk, Bristol & Middlesex district, adding 2,520 incarcerated people as padding to a district that was already 3.4% too small. The First Hampden & Hampshire and Berkshire, the First Hampden & Hampshire, Hampshire, and the Norfolk, Bristol & Middlesex districts were drawn right on the permissible line of having too little population to be districts, but both of these districts use prison populations as padding. Each of those districts has an actual population 5.2-5.4% smaller than the ideal. The Berkshire, Hampshire, Franklin & Hampden district has an actual resident population 5.04% smaller than the ideal.
In our testimony, we outline six specific steps that the Committee could take to completely mitigate the harm of prison-based gerrymandering in six of the eight districts:
Of the 8 districts we identified as problematic, we are able to suggest changes for 4 that do not require splitting VTDs, and two that require splitting a VTD. None of our recommendations causing ripple effects on to other districts. Each of these changes would compensate for the entirety of the vote enhancement caused by the prisons:
In the House:
37th Middlesex: Move Lunenberg B (250272015, Population 2,407) from WORC 03 to 37th Middlesex. This change also unifies all of Lunenberg.
8th Plymouth: Split the Easton 3 precinct in the 11th Plymouth district to transfer 1,458 people from 11th Plymouth to 8th Plymouth. We suggest transferring blocks 250056002023004, 250056002023011, 250056002023007, 250056002023003, 250056002023000, 250056002023002, 250056002022002, 250056002022007, 250056002022003, 250056002023006, 250056002023005, 250056002022008, 250056002022001, 250056002022000, 250056002022011, 250056002022012, 250056002022004, 250056002022013, 250056002022005, and 250056002023001.
7th Middlesex can be improved by expanding the district into Framingham Precinct 7 or Framingham Precinct 15 within 6th Middlesex.
In the Senate:
Norfolk, Bristol & Middlesex: Move Wellesley Precinct A (250213615, Population: 3,393) from First Middlesex & Norfolk to Norfolk, Bristol & Middlesex.
First Hampden & Hampshire: Move Chicopee Ward 8 Precinct A (250132773, Population: 3,018) from Second Hampden & Hampshire to First Hampden & Hampshire.
Berkshire, Hampshire, Franklin & Hampden: Move the town of Russell (Population: 1,775) from Second Hampden & Hampshire to Berkshire, Hampshire, Franklin & Hampden.
It is the Committee’s responsibility to ensure that each vote cast in Massachusetts is weighted equally. This means that, to the extent possible, the Committee must not allow the strength of a Massachusetts resident’s voice in state government to be determined by how close he or she lives to a prison. By enacting the simple solutions outlined above, the Committee would be able to lessen the harmful effects of prison-based gerrymandering in Massachusetts communities.
The Prison Policy Initiative today submitted testimony to the Arizona Independent Redistricting Commission, suggesting that the Commission make some simple fixes to their redistricting map proposal that would minimize the distortion caused by prison-based gerrymandering.
The issue of prison-based gerrymandering has been on the Commission’s radar throughout the redistricting process, thanks to the efforts of local advocates and politicalbloggers. The Commission discussed the issue in depth during the public hearing process, concluding that prison-based gerrymandering has the potential to seriously undermine Arizona’s democracy. As Commissioner Richard Stertz explained at the September 8th hearing, the Commission,
“… [doesn’t] want to give any indication of creating a non-voting population in a particular legislative district that would lead those that can vote into a hyper-majority by virtue of having so many prisoners in a particular legislative district.”
The Commission has also raised the issue of how prison populations can confound analyses of minority voting power, and members promised to exclude incarcerated populations from their analyses of majority minority districts.
With all the progress that the Redistricting Commission has made to address the issue of prison-based gerrymandering, it should be easy for the Commission to make a few small changes that would make a big difference in minimizing the distortion caused by prison-based gerrymandering:
First, all of the Florence prisons in Pinal County have been lumped together into Legislative District 8, but some of these prisons could easily be transferred to neighboring District 11. District 8 appears to be drawn 1.53% heavy, but without the prison populations the district is 6.9% too light, diluting the votes of all residents in all other districts. We recommend:
Shifting ASPC- Eyman (Tract 000803, Block 1059) to District 8. Extending District 11 north 1.5 miles to pick up ASPC- Eyman has no impact on the voting population of the districts because the census blocks in between have no population, and
Increasing the voting population of District 8 by adding the remainder of a split precinct — VTD 0402171 — (currently shared with District 16) back into District 8.
Second, a similar strategy — adding more population to a district with a large prison — should be employed in Proposed District 1 in Pima, Cochise and Graham Counties. Proposed District 1 would be the 2nd smallest district in the state with the 5th largest correctional population. This district is underpopulated even when using the prisons as padding, and without the prisons this district is 5.3% smaller than the ideal district. An additional precinct should be added to this district.
The Arizona Independent Redistricting Commission has nothing to lose and a lot to gain for Arizona’s democracy by making these small and easy changes that will more closely align Arizona redistricting with the federal requirement of “one person, one vote.”
The Prison Policy Initiative and friends celebrated the end of prison-based gerrymandering in New York at a wonderful reception on October 11 in New York City. At the event, PPI presented awards to Assemblymember Hakeem Jeffries and VOCAL New York, honoring them for their outstanding leadership in this momentous civil rights victory.
We are so grateful for the support that allows us to continue working to permanantly bring an end prison-based gerrymandering nationwide.
For more pictures of the event, check out our album on the Prison Policy Initiative Facebook page!
The members of the Minnesota Judicial Special Redistricting Panel have been traveling the state to gather public input about the state’s redistricting process. One of the critical questions they must consider in the current redistricting cycle is how to address the Census’s prison miscount, argued experts including the Prison Policy Initiative.
Ten years ago, the legislature used the Census Bureau’s prison counts to draw the districts, giving more influence to the districts that hosted the prisons and diluting the votes of every resident in every other district. The urban, African American and Native American communities that a disproportionate number of the people in prison call home pay an even higher price. This year, the Minnesota Judicial Special Redistricting Panel has a unique opportunity to right this wrong.
Remove incarcerated populations from the redistricting data, ensuring that the power of the an individual’s vote in Minnesota is not determined by his or her residential proximity to a prison. This is the most straightforward and effective solution.
Use Minnesota’s allowable deviation from the ideal district size to compensate for the distortion caused by including prison populations in redistricting data. Choosing this solution would mean drawing districts that contain prisons on the heavy side of the allowable range, and drawing the districts that incarcerated people tend to come from on the lighter side.
Increase transparency by identifying incarcerated populations in all draft and final redistricting maps and tables. This would facilitate the process of determining the impact of incarcerated populations in redistricting data, and allow the Panel to take prison populations into account when determining minority electoral power. Peter Wagner, Executive Director of the Prison Policy Initiative, discussed this option in detail in his submitted testimony.
If the Minnesota Judicial Special Redistricting Panel chooses to implement any of these solutions, it would both fix a flaw that undermines the state’s democracy, and bring the redistricting process in line with the Minnesota Constitutional Clause that unambiguously states that the condition of being incarcerated does not change a person’s residence:
“[N]o person loses residence … while confined in any public prison.” (Article VII, § 2.)
As Sarah Walker of the Minnesota Second Chance Coalition pointed out in her testimony to the Panel, Minnesota should act now to implement a timely solution. But in the long run, she explains, Minnesota should follow the lead of states like Maryland, New York, Delaware, or California, and enact statewide legislation to ensure that this redistricting cycle is the last one in which Minnesota will have to address the issue of prison-based gerrymandering.
Rhode Island is in danger of potentially creating a House District where a quarter of the people counted in the district wouldn’t be actually be constituents of the district’s representative.
How can this be? Because that quarter is locked up in the Cranston prison complex.
The Census Bureau counts incarcerated people as if they were residents of the facilities in which they are detained, but both Rhode Island law and common sense say otherwise. Incarcerated people remain legal residents of their home addresses, and, if allowed to vote, they vote absentee in their home districts. When incarcerated people are counted as “constituents” of the district that includes the prison, the political clout of that district is inflated at the expense of all other districts. In the House District scenario above, for example, every three of the actual residents who live in the district with the prison would have as much access to the House of Representatives as any four people living in any other district.
Because prison-based gerrymandering poses such a threat to the welfare of Rhode Island’s democracy, the Rhode Island ACLU is stepping in to show how the state can get redistricting right. Yesterday the ACLU presented testimony before the Rhode Island Reapportionment Commission, explaining that the Commission needs to take decisive action in order to avoid creating one of the most extreme prison-based gerrymandering situations in the country.
ACLU policy associate Hillary Davis warned the members of the Commission that Rhode Island is particularly vulnerable to the pernicious effects of prison-based gerrymandering:
The need for remedying this problem in Rhode Island is heightened by our state’s special status. We believe we may be the only state with just one prison complex. This fact combines negatively with the fact that Rhode Island legislative districts are smaller by population than in most states.
It is precisely this combination of a concentrated prison population with the relatively small size of Rhode Island districts that has the potential to put the state on the map as having the most dramatic instance of prison-based gerrymandering in any state legislative district. Furthermore, state law explicitly states that the condition of being incarcerated does not legally sever a person from his or her actual home address.
As Davis explained, there’s an easy solution that would immediately solve the problem for this redistricting cycle: just take the prison populations out of the general population data used for redistricting. Removing the prison populations for redistricting purposes would ensure that every vote cast in Rhode Island is weighted equally, and all residents have equal access to the legislature.
This redistricting cycle it looks like Massachusetts is taking action to lessen the distortion caused by prison-based gerrymandering.
An article published in yesterday’s Bay State Banner reports that members of a coalition of Massachusetts organizations are calling on the Massachusetts Redistricting Committee to address the problem of prison-based gerrymandering:
….members of the coalition are calling on the Redistricting Committee to not count prison populations in the drawing of districts, a practice they say artificially inflates the voting clout of suburban and rural districts that have prisons.
While a clause in the Massachusetts Constitution prevents the Committee from changing the way incarcerated people are counted for the current round of redistricting, House Redistricting Committee Chairman Mike Moran noted that the Committee can use allowable deviations from the deal district size to lessen the distorting effects of prison-based gerrymandering:
Moran noted that the U.S. Census counts prisoners in the census tracts where they’re incarcerated. But he added that, although the Legislature is required to draw districts that are of equal size, they have leeway to deviate from that standard by up to five percent.
“Where there is a prison, you would keep it on the negative side and where there is not, you would keep it on the positive side,” Moran said.
Here’s a video we released that explains why this fix is a step in the right direction for Massachusetts democracy:
The City of Pacific, Missouri is in danger of diluting the votes of a two-thirds of its citizens.
Yesterday’s Washington Missourian reports that the city’s current redistricting plan counts the more than 1,000 people incarcerated in the Missouri Eastern Correctional Facility in Ward 1, making up nearly half of the ward’s entire population. This means that a resident of this ward would have about twice the political clout of a resident in any other ward, just because he or she lives near a prison.
Is that fair? Of course not. I just submitted a letter to the editor to the Missourian explaining why:
City of Pacific should refuse to use prison in redistricting
If you live in the Second or Third Ward, your vote is going to be worth half as much as if you lived next to the prison in the First. ["Redistricting Plan Selected for Ward Boundaries" October 12, 2011] That’s not fair. Districts are supposed to be based on equal numbers of residents. By common sense and the state constitution, prisoners are not residents of the prison.
The Missouri state constitution defines residence for people in prison: “no person shall be deemed to have gained or lost a residence by reason of his presence or absence while… confined in public prison.” (Article VIII, S 6.)
The Census counts people in the prison as residents of Pacific, but the federal law does not require the city to use those counts. In fact the Supreme Court has said it’s ok to remove them:
“Neither in Reynolds v. Sims nor in any other decision has this Court suggested that the States are required to include … persons denied the vote for conviction of crime in the apportionment base by which their legislators are distributed and against which compliance with the Equal Protection Clause is to be measured. The decision to include or exclude any such group involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere.” Burns v Richardson 384 U.S. 73, 92 (1966).
The City of Pacific should join the more than 100 counties and cities across the country that refuse to use the Census Bureau’s prison counts when drawing districts.
The City may not have known that this solution was legal or common when it prepared the proposed maps, but it should take action quickly to ensure that all residents are given the same power to determine the future of Pacific.
Peter Wagner Executive Director Prison Policy Initiative Easthampton, Massachusetts
FOR IMMEDIATE RELEASE October 9, 2011 Contact: Peter Wagner (413) 923-8478
The non-profit non-partisan Prison Policy Initiative hails California Governor Brown for signing AB 420 in to law on Friday. The legislation, introduced by Assemblymember Mike Davis, would end the practice of treating incarcerated individuals, for redistricting purposes, as residents of the districts where they are temporarily confined.
The new law will take effect for the 2020 round of redistricting, requiring the Department of Corrections to report the home addresses of incarcerated people to the Citizens Redistricting Commission so that the Commission may count incarcerated people at home for redistricting purposes. The new law is similar to that currently in effect in Maryland and New York, and to a law passed in Delaware to take effect in 2020.
“California is the 4th state to correct a serious flaw in the decennial Census”, said Peter Wagner, Executive Director of the Prison Policy Initiative. The organization has been leading a decade-long effort to to correct the problem of “prison-based gerrymandering” where the legislative districts that contain prisons receive extra political influence and all other districts receive less. Although people in prison can’t vote and are considered by California state law to be residents of their home communities, the Census Bureau counts people in prison as if they were residents of the prison location.
“The Prison Policy Initiative, civil rights groups, and the Census Bureau’s own advisers have urged the Bureau to change where they count people in prison,” said Wagner. The Census Bureau has not yet made this change, so “California joins 3 other states — and more than 100 county and municipal governments — who all deserve credit for developing their own solutions to the Census Bureau’s prison miscount.”
The new law applies only to redistricting and will not affect funding received by communities. The new state law will put California’s method of counting incarcerated people for state legislative redistricting purposes in line with that of the majority of the California counties that have large prisons. Ten of these counties have historically refused to engage in prison-based gerrymandering when drawing their own county districts.
The new law will solve serious electoral inequities in California created by prison-based gerrymandering. The Prison Policy Initiative’s analysis of the districts drawn after the 2000 Census found a state assembly district were 8.6% of the required population was incarcerated people from other parts of the state. Using the prisons to pad this district’s population gave every group of 91 voters in this district the same influence as 100 voters in other districts. Said another way, every voter in every district without a prison had their vote diluted about 9% by prison-based gerrymandering.
Miscounting the prison population caused a similar vote dilutive effect on the districts proposed by the California Redistricting Commission after the 2010 Census. (See the testimony of the Prison Policy Initiative and our colleagues at Dēmos on July 15, 2011.)
“The new law offers California voters a fairer data set on which future districts will be drawn,” said Wagner. “Incarcerated people are legal residents of their homes, not remote prison cells.”
The hearing will take place at 10 am, Tuesday, Oct. 4
Albany County Courthouse, 16 Eagle Street, Albany, NY 12207
On Aug. 4, Judge Devine granted the fifteen voters from across New York State permission to intervene in the lawsuit to defend the law. The defendants in the lawsuit are government bodies charged with carrying out the new law: the New York State Legislative Task Force on Demographic Research and Reapportionment (LATFOR), and the Department of Corrections and Community Supervision (DOCCS). The New York State Attorney General’s office is representing DOCCS.
The new law, known as “Part XX,” requires that incarcerated persons be allocated to their home communities for state and local redistricting and reapportionment, but does not affect funding distributions. This tracks with the New York State Constitution’s explicit provision that incarceration does not change one’s residence.
New York State Senator Elizabeth Little and a group of co-plaintiffs are seeking to restore New York’s former practice, which artificially inflated the voting strength of select communities at the expense of all others by allocating incarcerated persons to the districts where prisons are located, rather than to their home addresses.
Separate from the lawsuit, on Aug. 4, the New York State Legislative Task Force on Demographic Research and Reapportionment announced that it would comply with the law. This was a dramatic change for LATFOR, whose co-chair, Senator Nozzolio, represents a district that includes several large prisons. LATFOR had previously been implying that it was not going to implement the law.
A recent Quinnipiac University poll reported that public opinion is decidedly against prison-based gerrymandering, with a majority of New York State voters agreeing that “prison inmates should be counted as residents of their home districts, not of where they’re imprisoned.” The poll found that majorities of voters from both parties, and majorities of both upstate and downstate voters, favored “counting inmates in their homes, not their prisons.”
About Prison-Based Gerrymandering
There are dramatic examples of prison-based gerrymandering in upstate counties and cities. For example, half of a council ward in the city of Rome, New York is incarcerated, giving the residents of that ward twice the influence of other city residents. Recognizing the distorting effect of prison-based gerrymandering at the local level, thirteen New York counties with large prisons – including four in plaintiff Senator Little’s district – have historically exercised their discretion to remove the prison populations prior to redistricting.
The new law brings consistency to redistricting in New York, prohibiting the state and all local governments from giving extra political influence to districts that contain prisons. Sen. Little’s lawsuit seeks to have the new legislation struck down, the effect of which would require legislative districts – including her own, which contains 12,000 incarcerated persons – to include prisons when redistricting, to the detriment of all other districts without prisons.
Returning to this practice would unfairly inflate districts containing prisons at others’ expense, and violate the and violate the New York State Constitution. In addition, many areas containing large minority communities have been disproportionately affected by this practice, effectively diluting the votes of minority communities. The enactment of Part XX was considered a major civil rights achievement for New York State.
April 23, 2014: The U.S. District Court for the District of Rhode Island will will hear arguments in Davidson v. Cranston on whether to continue with the case against the City’s prison gerrymandering scheme. The Motion Hearing is set for 2:30pm on April 23, 2014 in Courtroom 4, before Senior Judge Ronald R. Lagueux.
June 9, 2014: Aleks Kajstura will be at the League of Women Voters, Convention 2014 caucus panel “Prison Gerrymandering: Is It Time for Action in Your State?” at 7:30am at the Omni Hotel in Dallas, Texas.
Not near you? Invite us to your city, college or organization.
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