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Nation’s leading racial justice law firm explains discriminatory impact of counting incarcerated people as “residents” of prison facilities rather than their home communities

by Jyoti Jasrasaria, July 14, 2016

On July 19, 2015, the NAACP Legal Defense and Educational Fund, Inc. (LDF)—the nation’s oldest civil rights and racial justice law firm—submitted a comment letter in response to the Census Bureau’s Federal Register Notice about the Residence Rule and Residence Situations (Rule), 80 FR 28950 (May 20, 2015).

In its letter, LDF urges the Census Bureau to count incarcerated people as residents of their last known pre-arrest home address, rather than of the particular prison facility where they happen to be located on Census Day. According to LDF, first, this change would make the Rule more consistent with existing state laws, legal principles, and ordinary definitions regarding a person’s residence. Second, it would better align the Rule with the principles of an inclusive democracy by avoiding the inflation of political power in some communities (namely white rural communities where prison facilities tend to be located) over others (namely communities of color that are disproportionately represented in prison populations due to racial discrimination in the criminal system) when legislative districts are drawn. Third, an updated Rule would provide a more accurate picture of the nation.

For example, in 2010, 884 incarcerated Black individuals made up 56% of Martin County, Kentucky’s incarcerated population, but 12 Black residents made up only about 1% of the county’s non-incarcerated population. LDF asserts that these disparities in population are not only distressing, but also consequential for political participation:

[T]his artificial inflation dilutes the voting strength of urban areas where prisons are fewer and, thereby, weakens the political power of minority communities. This contravenes the constitutional principle of one person, one vote, which requires that everyone is represented equally in the political process, as well as the prohibition by the Voting Rights Act, now celebrating its [51st] anniversary year, on the dilution of the voting strength of minority communities.

LDF highlights the importance of an accurate Census count in light of its impact on redistricting. States and local jurisdictions often rely on Census data for redistricting purposes to carry out prison-based gerrymandering. This is the practice of counting incarcerated people where they are confined when drawing legislative districts rather than in their home communities, where they maintain enduring ties while they are imprisoned and where they likely will return. The average sentence for people incarcerated in state prisons is less than three years, but the redistricting and other ramifications that result from prison-based gerrymandering last an entire decade. Critically, counting incarcerated people as residents of their prison facilities is unjust given that incarcerated people are overwhelmingly denied the right to vote and do not interact with their surrounding communities by using parks and roads. LDF contends:

[P]rison-based gerrymandering is unlawful precisely because it artificially inflates population numbers, and thus, the political influence, of districts where prisons are located, at the expense of voters living in all other districts. Indeed, prison-based gerrymandering is all-too reminiscent of the infamous ‘three-fifths compromise,’ whereby enslaved and disfranchised African American people were counted to inflate the number of constituents in—and thus, the political influence of—Southern states before the Civil War.

As LDF’s letter explains, without an updated Rule, LDF and other organizations have been litigating and advocating for policy changes on a state-by-state and locality-by-locality basis to ensure compliance with the one-person, one-vote constitutional principle and the Voting Rights Act’s protection of minority communities’ voting strength. A Rule that counts everyone in the right place would help ensure a more robust democracy that gives all Americans equal representation in the political process.

Notwithstanding LDF’s urging, the Census Bureau’s proposed Rule has seemingly ignored LDF’s comments and maintained its practice of counting incarcerated people at their prison facility address.

Jyoti Jasrasaria, a 2L at Harvard Law School, is a 2016 summer legal intern at the NAACP Legal Defense & Educational Fund, Inc.

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