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Federal Judges save Kansas from “worst prison gerrymander” award

by Peter Wagner, June 8, 2012

Kansas State House redistricting map

The federal judges drawing Kansas’s new state legislative maps have deftly saved the state from earning the “worst prison gerrymander” award for the 2010 cycle of state legislative redistricting. In a report released on May 28, shortly before the redistricting trial began, the Prison Policy Initiative and Dēmos warned that one of the proposed maps would have been the most dramatic instance of prison-based gerrymandering in any state legislative district in the nation. We urged the court to divide the prisons between multiple districts, and the federal judges did exactly that.

As Mary Sanchez explained in a March Kansas City Star column, the high concentration of prisons in the Leavenworth area gave Kansas legislators “the potential for shenanigans like no other state.” By padding districts with prison populations from other parts of the state or nation, state legislatures give extra influence to those districts and dilute the votes cast in all districts that contain the required number of actual residents. This problem is called prison-based gerrymandering.

As Brenda Wright and I argued in our report, the map proposed by the Kansas State House was particularly problematic because it took what was already one of the most extreme examples of prison-based gerrymandering in the nation and made it worse. Existing House District 40 contains a larger incarcerated population than any other district in the state, and includes all but one facility in the region. The House’s proposed map moved the federal prison – which contains people from all over the country – also into District 40.

The result would have been a legislative district with a greater portion of its population behind bars than any other state legislative district in the nation. If the proposed House plan had been adopted, every 4 residents of House District 40 would have been given the political influence of 5 residents in any other district.

A national movement has developed to fix the problem of prison-based gerrymandering. In fact, one of Kansas’s historical rivals for “worst prison-based gerrymander” award was Maryland, which has a huge concentration of prisons in the western portion of the state. But in 2010, Maryland was the first state to pass legislation counting incarcerated people at home for redistricting purposes.

Ideally, the Census Bureau would count incarcerated people as residents of their home addresses, which would eliminate the problem of prison-based gerrymandering nation-wide and make the Bureau’s methodology more compatible with how state constitutions define residence for incarcerated people. Or Kansas could pass a law like those in Maryland, New York, Delaware and California that performs a state-based adjustment to the redistricting data. But these solutions could not be implemented in time for the redistricting at hand, so we urged the Court to use other techniques to minimize the vote-dilutive harm of prison-based gerrymandering. In our report, we explained:

“The best solution is for the Court simply to divide the prisons among multiple districts.”

And, we are happy to report, that is exactly what the federal judges did. Although the state house and many of the other parties in the case wanted the judges to implement the state house’s proposed map, the judges instead drew their own State House district map that split the Leavenworth area prisons into three pieces.

The military prison was put in House District 42, the federal prison in District 41 and the state and private facilities in District 40. It is true that this solution does not properly count incarcerated people in their home districts and it still gives the Leavenworth area disproportionate influence in state affairs, but it greatly reduces the concentration of unearned political power in any individual district. And, by extension, this solution greatly reduces the vote dilution in every other district in the state.

And for that, the people of Kansas have something to be very excited about.

4 Responses

  1. Frank Smith says, 1 day, 3 hours after publication:

    I’m a bit confused.

    How does spreading the incarcerated population that was formerly wholly within District 40, into district 40-42, “by extension…greatly reduce the vote dilution in every other district?

    Obviously, it makes a big difference in those three districts, but it wouldn’t have necessarily changed the boundaries for any other district. The others will still have the same population they did before those lines were redrawn.

    I live 250 miles or so from the prisons, the state’s Lansing prison, the US Pen and the camp and disciplinary barracks at Ft. Leavenworth, and the CCA prison in a Leavenworth industrial park, so I’m not intimately familiar with the districts involved.

    However, in the past, the Democratic incumbent was of considerable help to me personally in my fight against the expansion of the for-profit prison industry in Kansas. GEO Group tried to get our state law that prohibits any new for-profit prison from being built in Kansas repealed. Candy Ruff was no fan of CCA or the industry, for all the right reasons. Her successor was a Democrat as well, a reserve colonel and when she was called up to serve in Afghanistan, I think, Candy was able to return to her old seat, filling in until the colonel’s tour was over.

    In “Good Jobs First’s ‘Jail Breaks: Economic development subsidies given to private prisons’,” Candy was quoted in a sidebar (Home Sweet Big House) about CCA’s attempt to dodge taxes:
    A laughable episode involving prison property taxes occurred at CCA’s Leavenworth Detention Center in Kansas (this facility didn’t make it into our study because it has fewer than 500 beds). In February 1998, CCA filed a property tax protest with Leavenworth County, arguing that the prison should be classified as primarily residential, rather than commercial, and thus qualify for a lower rate. The appeal was not well received. One state legislator told a reporter: “They’re located in a for profit industrial park surrounded by for-profit enterprises. They’ve got these bars on the windows. They’ve got barbed wire on top of the fence, and they want to say they’re a residence? Give me a break.” CCA later dropped the protest.

    Kansas State Rep. Candy Ruff, quoted in Mark Wiebe, “Detention Center Meets Opposition in Push to Change Tax Classification,” Kansas City Star, March 12, 1998, p.1. See also two other articles by Wiebe in the same newspaper: “Detention Center Seeks Change to Its Residential Tax Classification” (February 5, 1998, p.1) and “Detention Center Drops Appeal Over Property Taxes” (April 16, 1998, p.8).

    The anti-Obamacare tidal wave swamped Kansas in 2010. Not only did we get a governor who had been firmly in the pocket of Koch Industries for the previous 14 years, but we lost a dozen Democrats in the state house, dropping that minority from 1/3rd of that to a quarter. In the past there were moderate Republicans who were a bulwark against some of the crazier legislation (i.e., anti-minority, anti-education, anti-poor, anti-evolution, anti-choice, anti-sex education and mostly, anti-progressive taxation) proposed by what the former House minority leader called the 4th party in Kansas. After the Democrats, the moderate Republicans, the conservative Republicans, much power has been accrued by what he calls, the “BSC” Republicans.

    Indeed, the Bat Shit Crazy Republicans are leading the state back into the dark ages, along with the governor.

    If we maintain seats held by moderate to progressive Democrats, I’m okay with the 40-42 HD changes. It would be great if we would even pick one up. But if we lose any seats, I won’t be there when they break out the champagne at the Republican Party celebration of the law of unintended consequences.

    The worst gerrymander in the state did not have to do with the prisons. The BSC types drew congressional district maps that included all of western Kansas and stretched all the way up to Democratic strongholds near Kansas city, with the district clinging in a thin strip along the state’s northern border with Nebraska meant to reduce the liklihood that we will ever see a Democratic congressional Representative again in this state. I don’t find such a scenario at all comforting.

    The next worst was, having disenfranchised Democrats which included social progressives, the BSC and the Kochs are now going after moderate Republicans, especially those who have stood in the way of giving away the store to the 1%. They’re throwing them into the same districts, like the Koch-clones did in Ohio with Dennis Kucinich and Marci Kaptur, or drawing districts with heretofore similar community interests to deliberately exclude the homes of moderate or progressive incumbents.

    The upshot of all this is, in the words of Michelle Alexander, “The New Jim Crow,” and our Secretary of State, Kris Kobach, the AZ SB 1070 “Breathing while brown” racist for hire, is laughing all the way to the polling booths.

    1. Peter Wagner says, 2 days, 20 hours after publication:

      Hi Frank,

      If Court had put all of the prisons in one district, at least 20% of the district would have been incarcerated. This would have given every 4 residents in that district the same influence as 5 residents in any other district.

      Because people in prison come from all over — disproportionately some communities, but all communities send people to prison — but are concentrated in only a handful of prison locations, the math works so that the majority of the vote dilutive harm of prison-based gerrymandering comes from padding the prison district, not from failing to properly count people at home. The communities that are denied their true population suffer some vote dilution, but the real vote dilution is in comparison to the large vote enhancement in the prison district.

      By splitting the prisons between three districts, the Court limited the vote enhancement in any individual district.

      The vote enhancement in the prison districts dilutes the votes of everyone who doesn’t live in the prison districts. Reducing that vote enhancement reduces the vote dilution elsewhere. That’s why this the court’s action is positive.

      Here’s to hoping that Kansas will take a stronger step in 2021.

  2. Darris Hawks says, 10 months, 1 week after publication:

    Or we could stop Gerrymandering all together and divide states using the “shortest split line” algorithm.

    CGPGrey made an excellent video on it, here:
    http://www.youtube.com/watch?v=kUS9uvYyn3A

    1. Peter Wagner says, 10 months, 2 weeks after publication:

      Hi Darris,

      Prison gerrymandering is just one kind of gerrymandering, so as long as we are going to have population-based districts, making sure that incarcerated people (and other groups) are counted in the right location is critical. So *how* we draw the lines is a separate question from what *data source* we use.

      That said, the problem I see with “shortest split line” method, and the automated line drawing methods in general, is that this prioritizes how the districts *look* over how they perform. To me, I think it’s more important to end up with fair outcomes that properly represent real communities rather than have pretty districts. (Justin Leavitt’s comments in the Gerrymandering film on this regard are excellent.) Of course, one way to get rid of gerrymandering, prison-based and otherwise, is to get rid of districts. Proportional representation seems like a great solution, albeit one that isn’t going to replace state legislative redistricting any time soon.

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