Peter Wagner, Executive Director
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McAlester City Okla. Councilor continues to question necessity of prison-based gerrymandering

by Peter Wagner, October 25, 2011  

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,[1] 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.”[2] 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.

Myths:

From reading the McAlester News, I see that there are a few myths I should address first:

  1. 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.
  2. 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.[3]

    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.[4]

  3. 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.

Solutions:

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.

  1. The Charter specifies that redistricting must take place after the federal decennial Census, but the section governing line drawing only says that population equality must be measured using “the most recent census.” Many communities conduct their own census for redistricting and other purposes. By ordinance, you could provide for a municipal census to be conducted. The ordinance could task the City Planning Department or other agency with calculating the non-incarcerated population of the city as the census to be used for redistricting purposes. (The Department can then can simply take the total population in the 2010 Census and subtract the number of people reported in the prisons by the Census to conclude that the non-incarcerated population of your city is 16,628.) Then these “most recent” municipal census figures could be used to draw your districts with an ideal district size of 2,771.

  2. The City Charter requires the total city population to be used to set the ideal district size and it requires contiguous districts, but it does not prohibit modifications to the census data used to draw each district. Take the prison population and reallocate 1/6th of it to each ward. This way no single district’s population is skewed by the prison population, and their relative populations would reflect the distribution of local resident populations.

  3. In the event that the City Attorney concludes that its charter prohibits the above options, you should proceed with a charter amendment to unambiguously give you the power to remove the prison populations from your redistricting data. This could be as simple as adding the words “excluding state, federal or private prison inmates” or “minus the number of persons serving a sentence of detention or confinement in any correctional facility in the city” to 6.04(d)(1). The latter option is largely drawn from Colorado Statute 30-10-306(1) governing county redistricting in that state.[5]
    In any event, we urge you to use generic language to refer to the prisons that would anticipate any changes in the number of prisons, the names of the facilities, or the operating agency.

    Shortly, we will reach out to the National Civic League to make them aware of this problem. We will suggest changes to their Model City Charter and an addition of a cautionary footnote to warn communities in similar circumstances of this issue. As part of that effort, we’d be happy to work collaboratively with the your city to develop the optimal language for a Charter Amendment.

    A separate unique question you face is whether your current charter would prohibit re-redistricting without waiting another decade. Under federal law, redistricting must take place at least once per decade, but it can occur more frequently. If your Charter prohibits a second redistricting in the same decade, you should probably seek to amend that part of the charter at the same time so that you can change to fairer districts as soon as possible. This problem is too big to wait 10 years for a resolution.

  4. Thank you for your hard work addressing this issue, and thank you for reaching out so I could share my experience with you on this issue. Please do not hesitate to ask if I can help with anything else.

    Good luck and let me know what you decide!

    Sincerely,
    Peter Wagner
    Executive Director

    Footnotes

    [1]State law in Tennessee, Virginia, and Wisconsin inadvertently requires prison populations to be included in the districts, creating some of the most dramatic cases in the nation. Some districts are 80% or more incarcerated, giving the residents who live near the prison 5 times the influence of other county residents. On the other hand, a few states like Colorado, Michigan, and Mississippi go the other way and require local governments to exclude prison populations when redistricting.

    [2] Reynolds v. Sims, 377 US 533, 567 (1964).

    [3] Mahan v. Howell, 410 U.S. 315, 330-332 (1973), see also “States are Authorized to Adjust Census Data to End Prison-Based Gerrymandering, and Many Already Do”, available at http://www.prisonersofthecensus.org/factsheets/adjusting.pdf

    [4] See our list of select counties, cities and towns that exclude prison populations from local redistricting, available at: http://www.prisonersofthecensus.org/local/

    [5] The Michigan version of this statute that applies to cities reads ‘Residents of state institutions who cannot by law register in the city as electors shall be excluded from population computations where the number of such persons is identifiable in the census figures available.’ Unfortunately, by applying only to ‘state institutions’ it does not apply to federal or private facilities which have grown in number in Michigan since that statute was implemented in 1966. S117.27a

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