The January, 2012 issue of the Missouri Municipal Review includes my new article on how the Census Bureau’s prison miscount creates problems for Missouri cities at redistricting time. Since the Census Bureau counts incarcerated people as they they were residents of the cities in which they are confined, city officials who are redrawing city council lines must decide whether the people who live next to the prison should be given more influence over city affairs than other residents.

The article grew out of our work in the City of Pacific, where the city proposed drawing a city council district where almost half of the population was incarcerated, thereby diluting the votes of residents in all other districts.

The article explains that both federal law and Missouri state law permit municipalities to adjust their redistricting data to avoid prison-based gerrymandering, and at least two Missouri cities have successfully done so this redistricting season.

The article includes a section on Missouri state law, but it also includes a good national introduction to the topic, with sections on federal law and a detailed discussion of the factual and legal precedent for avoiding prison-based gerrymandering across the country. In the article, I explain that removing prison populations from redistricting data is a common (and common sense) approach used by more than 100 local governments across the country. The article ends with a discussion of best practices for avoiding prison-based gerrymandering.

The article came out too late for some cities that have completed their redistricting — Fulton has a district that is 47% incarcerated, Chillicothe has a district that is 39% incarcerated, and St. Joseph has a district that is 13% incarcerated — but the article will hopefully help other cities as they update their districts.

“Under the deal, prisoners won’t be counted if records can’t identify the specific election district they lived in last.”

That’s factually incorrect. The “deal” was that the Assembly and the Senate agreed to follow the law which requires that the ‘populations’ of prisons not be used as the basis for drawing districts, and that prisoners be counted instead at their prior home addresses. The law further requires that those whose homes are out-of-state, or for whom address information is lacking, not be included in the redistricting database.

While the Senate Majority made it clear they did not like the law, they never contested this reading of the law. During the most recent round of stalling over implementation of the law, the dispute within the Legislature’s Redistricting Task Force appears to have been over the adequacy of some of the available address information and over which software package was most appropriate for locating the home addresses.

Given the partisan vortex in New York, it’s easy to see how reporters coming late to the issue, and interviewing back-bench politicians, could write stories that conflate pre-existing details of the law with a groundbreaking “deal”. But what the Senate and Assembly finally agreed to do on January 10 was to stop arguing over microscopic details and to release one adjusted dataset that can be used for state and local redistricting. In other states, that wouldn’t even be “news”, let alone a “deal”.

The Maryland law addressed a long-standing problem in the federal Census that counts incarcerated people as residents of the prison location, even though they cannot vote and retain their pre-incarcerated residences. For decades, using unadjusted Census data diluted the vote of every Maryland resident who did not live near the prison complex in western Maryland, and had a particularly negative effect on African-American communities that experience disproportionate rates of incarceration.

The Judges note that the No Representation Without Population Act they upheld was an important Maryland civil rights victory: “As the amicus brief … makes clear, the Act was the product of years of work by groups dedicated to advancing the interests of minorities.” (p. 20)

Other versions of Maryland’s law have since passed in New York, Delaware and California. Maryland was the only state to apply its law to congressional redistricting, and the first state to complete the process after passing a law. The Judges’ ruling that the law was properly passed and fairly implemented will encourage other states to pass similar laws and will hopefully encourage the Census Bureau to make their own changes in where incarcerated people are counted.

The Court issued its ruling late on the Friday before closing for the Christmas weekend, and just three days after a hearing on the evidence and oral arguments on Tuesday. The Court had promised a decision by the end of January, but quickly concluded that the lawsuit was without merit. The case, Fletcher v. Lamone, was a Republican-backed lawsuit that challenged the congressional plan proposed by the Democratic governor of Maryland. The suit raised claims of partisan gerrymandering and racial discrimination against African-Americans. Three of the claims attacked the No Representation Without Population Act as part of that otherwise unrelated lawsuit.

The Prison Policy Initiative, along with our colleagues at the Howard University School of Law Civil Rights Clinic, the ACLU of Maryland, the Maryland State Conference of NAACP Branches, Somerset County Branch of the NAACP, the NAACP Legal Defense and Education Fund, and Dēmos submitted a friend of the court brief to make it clear to the court that the No Representation Without Population Act was protective of minority voting rights. (Our brief did not address the other claims in the lawsuit.) Judge Williams, in his concurring opinion, called our brief “particularly impressive and persuasive.” (p. 49)

The Court upheld the state’s congressional districting plan on all counts. While most of the 55-page opinion concerned other claims, considerable treatment was given to the No Representation Without Population Act. The Court explained the law and its rationale:

• Quoting the state’s summary, “the Act is intended to ‘correct for the distortional effects of the Census Bureau’s practice of counting prisoners as residents of their place of incarceration.” The court then goes on to explain:

  “These distortional effects stem from the fact that while the majority of the state’s prisoners come from African-American areas, the state’s prisons are located primarily in the majority white First and Sixth Districts. As a result, residents of districts with prisons are systematically ‘overrepresented’ compared to other districts. In other words, residents of districts with prisons are able to elect the same number of representatives despite in reality having comparatively fewer voting-eligible members of their community.” (p. 9)

• The Court noted the critical importance of ending prison-based gerrymandering in local redistricting where the impact of a single prison can be the majority of a district. The Court discussed the infamous Somerset County example where a county commission district intended to be majority African-American was unable to elect an African-American for decades because the district contained a large prison and the African-American voting population of the district was too small to elect a candidate of African-American voters’ choice. (p. 9)

The Court explained that states are not required to blindly use the Census for redistricting purposes:

• Federal law requires Congressional districts to be exactly equal in population, but does not prohibit states from making improvements to the federal census data in establishing that population base. Federal case law allows adjustments to the data used for congressional districts. Although Census data is presumed to be a good starting point, the data can be adjusted to correct for flaws. These adjustments, however, may not be done in “a haphazard, inconsistent, or conjectural manner.” (pp. 12-13)

• The Court found that The No Representation Without Population Act and its implementation by the Maryland Planning Department meets the standard, writing:

  “The question remains whether Maryland’s adjustments to census data were made in the systematic manner demanded by Karcher. It seems clear to us that they were. As required by the regulations implementing the Act, … [the Maryland Department of Planning] undertook and documented a multistep process by which it attempted to identify the last known address of all individuals in Maryland’s prisons…. This process is a far cry from the ‘haphazard, inconsistent, or conjectural’ alterations the Supreme Court rejected in Karcher.” (pp. 16-17)

Because the No Representation Without Population Act was found to satisfy even the stricter standards applicable to congressional districts, the opinion bodes well for the constitutionality of similar laws that apply to state legislative and local redistricting, where governmental discretion to make adjustments in Census data is even clearer.

The Court addressed several other issues that come up frequently in discussions about ending prison-based gerrymandering:

• Improving how incarcerated people are counted does not necessitate improving how other groups are counted. Plaintiffs criticized the state for reallocating incarcerated people to their homes, but not doing the same for members of the military or students in dorms. The Court called the assumption that these populations are all similarly situated to be “questionable at best.” The court explains:

  “College students and members of the military are eligible to vote, while incarcerated persons are not. In addition, college students and military personnel have the liberty to interact with members of the surrounding community and to engage fully in civic life. In this sense, both groups have a much more substantial connection to, and effect on, the communities where they reside than do prisoners.” (p.18)

• States should improve redistricting data where possible, even if it cannot be made perfect. For example, plaintiffs criticized the state’s reallocation because not all incarcerated people return to their exact prior address. The Court ruled:

  “Because some correction is better than no correction, the State’s adjusted data will likewise be more accurate than the information contained in the initial census reports, which does not take prisoners’ community ties into account at all.” (pp.18-19)

• The Court found that “although the Census Bureau was not itself willing to undertake the steps required to count prisoners at their home addresses, it has supported efforts by States to do so,” quoting the Census Bureau Director’s explanation that the new Advance Group Quarters data would

  “enable states ‘to leave the prisoners counted where the prisons are, delete them from redistricting formulas, or assign them to some other locale.’” (p. 16)

The Court also addressed the main impetus for our brief, namely the plaintiff’s bizarre implication that a law passed with the intent of improving African-American voting rights somehow diluted African-American votes:

“Our review of the record reveals no evidence that intentional racial classifications were the moving force behind the passage of the Act. In fact, the evidence before us points to precisely the opposite conclusion.” (p.19)

Historically, Virginia law required counties to base their legislative districts on federal Census data, denying Virginia counties the flexibility exercised by counties in other states to choose the population basis of their required redistricting. The Census Bureau counts people in prison – who by state law can’t vote and are not considered residents of the prison – as residents of the prison location. When used for rural county redistricting, this data can give extra influence to the people who live next to a large prison, and dilute the votes of residents in other districts in the same county.

In 2001, Virginia amended the law, giving counties where incarcerated people make up more than 12% of the Census population the option to avoid padding the Board of Supervisors district that contains the prison with the prison population.

Unfortunately, the 2001 law did not give all counties relief from state-mandated prison-based gerrymandering. For example, Southampton County’s prison population was too small to benefit from the 2001 law, yet the county was still forced to draw a district that was more than half incarcerated. This gave the residents of the district with the prison more than twice the political influence of the residents of other districts in the county.

The bill, HB13, has been pre-filed by Delegate Riley Ingram (R-Chesterfield, Henrico, Prince George, City of Hopewell) and will give any county faced with drawing a district that would be more than 12% incarcerated the option of choosing to not include the prison populations when drawing the districts. The change in the bill is subtle, but it will more than double the number of rural counties eligible to keep prison populations from distorting their districts.

Ideally, the Census Bureau or the state would count incarcerated people at their home addresses for state and local redistricting purposes. Prison and election-reform advocates are urging the Census Bureau to count incarcerated people at home in the next Census, and four states (California, Delaware, Maryland and New York) have passed legislation that applies to state legislative redistricting. But HB13 is an important step in the right direction towards ending prison-based gerrymandering in Virginia.

For more information:

• Unanimous resolution of the Board of Supervisors of Prince George County, Virginia, calling on the state to amend the state law that requires the county to use prison populations when redistricting to detriment of county democracy, November 23, 2010
• Legislature urged to change prisoners’ role in districting, by Frank Green, Richmond Times-Dispatch, September 5, 2010
• Culpeper supervisors begin redistricting work in county, by Donnie Johnston, Free Lance-Star (Fredericksburg), February 16, 2011
• Supervisors name redistricting panel, by Michael Copley, Powhatan Today, February 23, 2011
• Taking a closer look at the redistricting process, by Carson Tucker (Powhatan County Supervisor, District 5), Powhatan Today, February 23, 2011
• Prison-based gerrymandering’s impact at the local level in Virginia (from our Fixing prison-based gerrymandering after the 2010 Census report)
• Primer for reporters on county or municipal redistricting & prison-based gerrymandering, by Peter Wagner, March 2011

In 2010, Governor Patterson signed a landmark civil rights law requiring that incarcerated people be counted as residents of their home addresses for state and local redistricting purposes. Although most upstate counties already reject the Census Bureau’s prison counts for their own county redistricting, upstate Senators cried foul. And when they retook the majority in the state Senate, the new leadership promptly called for a time-out on implementing the law.

Nine upstate Senators with large prisons filed suit to permanently stop the law. Not among the plaintiffs, however, was Senator Nozzolio, who chairs the Crime Victims, Crime and Corrections committee and who has thousands of prison cells in his district. Instead, in his role as co-chair of the legislature’s redistricting taskforce, he was a defendant and used that position to tell the court that the task force would not defend the lawsuit.

The taskforce even announced that implementation of the law was on hold pending the outcome of the lawsuit. Civil rights groups, good government groups and editorial boards rightly objected to legislators unilaterally pledging to ignore a law before being told to do so by a judge. Under such pressure, the taskforce began to talk about following the law, but the tangible progress hasn’t been forthcoming.

Figuring out where incarcerated people reside and adjusting the Census Bureau data takes time, but it is not difficult. Maryland has a similar law and they implemented their version in a few months. The prisons provided the data a year ago, and all the taskforce had to do was process it. Eventually, the Assembly completed the process on its own back in September, and asked the Senate to approve their work. Instead, Senator Nozzolio raised challenges to the Assembly’s choice of software. And so the just-for-show bickering continued until the Judge threw out the Senate’s legal case and the charade started to collapse.

Given that they claim they intended to follow the law, the lawsuit’s dismissal shouldn’t have had an impact on the taskforce’s scheduled meeting last week to discuss implementation of the law. Instead, running out of legal arguments, they canceled the meeting.

My best guess is that the Senate’s strategy is to run out the clock. At some point the Senate intends to sheepishly look up and try to tell a federal judge overseeing New York’s compliance with the Voting Rights Act, “Gee, we really wanted to implement this civil rights law, but we found it harder than expected and we just ran out of time.”

If that’s their strategy, it could end sooner than they think. In November, a group of citizens asked a federal judge to take over redistricting. They pointed to several reasons why they do not expect the legislature to complete redistricting in time for the primary elections, and the law ending prison-based gerrymandering was a key part of their argument.

I don’t know how the federal judge will rule, but it would be rational for New Yorkers to conclude that the redistricting taskforce is either unable or unwilling to comply with the law. Clearly, if the redistricting taskforce doesn’t get to work, somebody is going to put them out of a job real soon.

The ruling was also a blow to some local leaders, whose communities rely heavily on inmates to bolster their populations. Howard Maneely is town supervisor of Malone.

“Malone is unique, we’re a small town. We have three state prisons here. About one-third of our population are confined to the three correctional facilities. If we take them away from our count, from our population of Malone, we will have hardly any representation at all. Our district will be so big, we’ll hardly know our legislators anymore.”

Putting aside the constitutional question about why legislative districts are based on population and not other factors, I wonder which level of government Supervisor Maneely is worried about and if there might be some fundamental misunderstandings behind his concerns.

On the level of the state senate, with or without the prison population Malone is a tiny part of Senator Little’s district. The prison is a big employer and a newfound priority for Senator Little, but the town itself isn’t a big player in the district. Of course, if Malone has a town-specific need for Senator Little’s attention, they will need something that Senator Little responds to: votes. And that’s one thing that Malone’s prisons can’t provide.

But there is one place where the fact that Malone’s population is one-third incarcerated might have an immediate effect on the town’s ability to influence policy: the county legislature.

I suspect the Supervisor is worrying that without using the prison as padding, the town of Malone’s clout in the country legislature would plummet. Except, of course, it never had that clout in the first place. Franklin County has always refused to use the prison populations when drawing country districts. North Country Public Radio summarized the County Chairman’s explanation of avoiding prison-based gerrymandering as a “no-brainer.”

Franklin County was one of 13 New York counties that refused to use the prison populations when drawing county districts after the 2000 Census. In neighboring Essex County, the Board of Supervisors put their rationale in the Local Law:

Persons incarcerated in state and federal correctional institutions live in a separate environment, do not participate in the life of Essex County, and do not affect the social and economic character of the towns in which … the correctional facilities where they are incarcerated are located.

The inclusion of these federal and state correctional facility inmates unfairly dilutes the votes or voting weight of persons residing in other towns within Essex County. This is particularly so if the 1,898 inmates in the town of North Elba are included in its population total of 8,661 since those inmates would then represent 21.914% of the town of North Elba’s population.

The Board of Supervisors finds that the population base to be utilized in and by the plan apportioning the Essex County Board of Supervisors should exclude state and federal inmates.

Unfortunately, not all counties avoided prison-based gerrymandering like Supervisor Maneely’s county did. That’s why the law passed last year that ended prison-based gerrymandering also amended the Municipal Home Rule Law to require county and municipal governments to avoid prison-based gerrymandering. Senator Little’s lawsuit attacked that part of the law as well, but fortunately the Judge’s decision last week protects the entire law.

I wonder if Supervisor Maneely’s concern may be motivated in part by a separate misunderstanding. One clue may be the fact that he recently told the New York state redistricting Task Force: “We provide services for [incarcerated people] and those facilities, and we need that count….”

Many people don’t know this – and certain upstate Senators are reluctant to clear up this confusion held by their supporters – but the bill in New York does not apply to funding. The bill changes where incarcerated people are counted for redistricting purposes only. Federal and state funds are distributed by a series of complicated formulas, none of which rely on state or local redistricting data. No state or federal funding based on population will be affected. And any payments that the prison system currently makes for town services provided, ie. water, sewer, etc., are based on the prisons actual usage and are unrelated to the Census counts.

Finally, prison-based gerrymandering is over in New York. People who live in state legislative districts that do not have prisons will no longer have their votes diluted. People who live in counties or municipalities with prisons but not immediately adjacent to the prisons will also no longer have their votes diluted. The establishment of one clear standard for state, county and municipal government will set positive example for other states to follow.

And what lessons should other states draw from New York’s experience? Clear up these confusions about how these laws work and who benefits early and often.

The Assembly did their reallocation months ago and was happy with their work, and, while it looked to me like the Senate was either stalling or planning to ignore the law, Senator Nozzolio repeatedly told the press that, “the law will be complied with, whatever that law is. Impressions to the contrary are simply not accurate.” In fact, some of his quotes appeared a little testy regarding the letter that the Prison Policy Initiative and other civil rights groups sent urging the redistricting task force to — until told otherwise by a judge — follow the law.

I can’t imagine what could be the hold up now. Did something happen?

Oh, that’s right. On Friday, New York Supreme Court Justice Eugene Devine threw out the Little v. LATFOR case the Republicans filed to overturn the law ending prison-based gerrymandering in New York.

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.

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

]]> http://www.prisonersofthecensus.org/news/2011/10/25/mcalester-city-okla-councilor-continues-to-question-necessity-of-prison-based-gerrymandering/feed/ 0 http://www.prisonersofthecensus.org/news/2011/10/13/pacific/ http://www.prisonersofthecensus.org/news/2011/10/13/pacific/#comments Thu, 13 Oct 2011 20:55:50 +0000 Peter Wagner http://www.prisonersofthecensus.org/news/?p=4058 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

]]> http://www.prisonersofthecensus.org/news/2011/10/13/pacific/feed/ 0 http://www.prisonersofthecensus.org/news/2011/10/09/ca-bill-signed/ http://www.prisonersofthecensus.org/news/2011/10/09/ca-bill-signed/#comments Sun, 09 Oct 2011 09:07:37 +0000 Peter Wagner http://www.prisonersofthecensus.org/news/?p=4037 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.”

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]]> http://www.prisonersofthecensus.org/news/2011/10/09/ca-bill-signed/feed/ 0 http://www.prisonersofthecensus.org/news/2011/09/19/unintentional/ http://www.prisonersofthecensus.org/news/2011/09/19/unintentional/#comments Mon, 19 Sep 2011 14:58:08 +0000 Peter Wagner http://www.prisonersofthecensus.org/news/?p=3877 Even though the citizens of McAlester appear to unanimously agree that prison-based gerrymandering is a bad idea, the city is still struggling with the problem. We blogged about McAlester back in April.

Ten years ago, the city excluded the prison population when drawing the city council wards. More than 100 other counties and municipalities with large prisons did the same thing. It’s a common practice in line with common sense. Had the city included the prison population, the population of one district would have been 60% incarcerated. The 1,333 actual residents in that district would have received the same representation as 3,333 people in other parts of the city. In other words, the people who lived farther away from the prison would have had less than half the influence of residents who lived near the prison.

So, if the city solved the problem ten years ago what’s the problem now? Over the last decade, the city rewrote their charter and used language that prohibited the kind of adjustment they used last time. The new language says that districts “shall be equal in population … according to the most recent census” (Emphasis added, Sec 6.04(d)).

But it is clear that the drafters of the new city charter never intended to require the city to engage in prison-based gerrymandering:

Dorothy Crone, who had been a member of the commission that created the new City Charter, said it had not been the members’ intent to have the prison inmate population included when redrawing the ward boundaries.

“I served on the City Charter (Commission) when we made those changes,” she said.

“I think we made a little mistake that needs to be corrected.”

Some city residents have discussed changing the charter, but that discussion may have been short circuited by three apparent misunderstandings:

First, according to an article from April, there was a concern that such a change would affect the city’s federal funding. This is an unwarranted concern. Federal funding is distributed by a series of complex formulas that do not use municipal redistricting data.

Second, discussions about amending the charter in order to clarify the unintended language seem to be based on the assumption that it’s a lengthy process that cannot be completed before redistricting is finished. We are not experts on Oklahoma law, but the plain language of the city’s charter seems to describe a simple procedure that could take effect immediately:

ARTICLE 8. CHANGES TO THE CHARTER

Sec. 8.01. Proposal of Charter Changes.

A proposition to change this Charter may be either in the form of a proposed amendment to a part or parts of the Charter or of a proposed new Charter….

(b) By ordinance of the Council containing the full text of the proposed amendment or new Charter and effective upon adoption….

Third, the Commission appears to be operating under some pessimistic and unfounded assumptions:

[Ward Commission Chairman Evans] McBride said that even if the charter hadn’t required the prison population to be included when redrawing the boundaries, it’s likely that federal and state law would have required it anyway.

Again, we aren’t experts on Oklahoma law, but federal law clearly gives counties and municipalities permission to determine for themselves which populations to include when drawing districts. 10 years ago Greer County excluded the prison population when drawing their County Commission districts, and more Oklahoma counties did so this decade. If there is a state statute that requires municipalities to engage in prison-based gerrymandering, we aren’t aware of it.

Clearly McAlester wants to do the right thing. It would be unfortunate if the city diluted the votes of the majority of its own citizens because of some unintended language in a city charter that can be easily changed.

]]> http://www.prisonersofthecensus.org/news/2011/09/19/unintentional/feed/ 0 http://www.prisonersofthecensus.org/news/2011/09/14/10-years/ http://www.prisonersofthecensus.org/news/2011/09/14/10-years/#comments Wed, 14 Sep 2011 20:58:39 +0000 Peter Wagner http://www.prisonersofthecensus.org/news/?p=3830 The Prison Policy Initiative was founded 10 years ago today with the goal of turning my academic research on what we now call prison-based gerrymandering into a national discussion of how prison counts impact redistricting. We’ve come a long way! In this and subsequent posts, I wanted to tell the story of how the Prison Policy Initiative grew as an organization and built a national movement to end prison-based gerrymandering.

Ten years ago, I was in law school wrapping up an almost year long independent study project with Professor Jim Gardner that linked felon disenfranchisement to what we now call prison-based gerrymandering. My paper, “Prisoner disenfranchisement and state legislative redistricting in New York State: Electoral appropriation and the return of the 3/5ths clause” had the potential to change how our electoral system works, but it needed an audience.

I, along with UMass PhD candidate Stephen Healy and Smith College student Sarah Kowalaski, founded the Prison Policy Initiative ten years ago, building a platform to transition my academic paper into a policy paper. Six months later, I was testifying before the New York State legislature telling them about prison-based gerrymandering and urging them to start the redistricting process over with better data that met the state’s constitutional definition of residence. The legislature ignored me at the time, but nine years later, the legislature took our advice.

Over the course of 7 months, we turned my academic paper into what the Prison Policy Initiative eventually released as Importing Constituents: Prisoners and Political Clout. The biggest challenge we faced was learning how to explain the connections between the Census, redistricting, disenfranchisement and vote dilution in an accessible way. In an encounter that would change our strategy forever, we got a huge boost from a trained communicator in the media.

While Stephen, Sarah and I were working on the report, the Sentencing Project’s Marc Mauer introduced me to Jonathan Tilove, then a correspondent for Newhouse News Service covering race and immigration, who was doing a feature-length piece about how Census counts affect districting. I shared my academic paper with Jonathan and spent hours discussing it with him. He wrote an article that’s still timely today: “Minority Prison Inmates Skew Local Populations as States Redistrict,” which linked the impact of what we now call prison-based gerrymandering on state level redistricting to the impact on county and municipal redistricting.

Prior to Jonathan’s article, explaining my research used to take hours. His piece helped us succinctly explain who benefits from prison-based gerrymandering. For example, in a single clear sentence Jonathan powerfully summarized one concept that used to take me 15 minutes to explain. Many of the innovations in Jonathan’s article informed how we constructed our “Importing Constituents” report, and its discussion of intra-rural impacts inspired our strategy for the next decade.

The article’s publication introduced our work to Brenda Wright, then managing attorney at the National Voting Rights Institute, and now Director of the Democracy Program at Demos. Brenda reached out to share her expertise and has been one of our closest advisors and colleagues ever since.

With these early successes under our belt, the stage was set for the release of our data and the Importing Constituents: Prisoners and Political Clout report, but that will be a story for later in this series.

As for my co-founders? Stephen Healy is now a professor of Geography at Worcester State University, and a board member of EPOCA, a leader in the fight against prison-based gerrymandering in Massachusetts. Sarah Kowalski stays involved in the Prison Policy Initiative and teaches Chinese in the Worcester, Massachusetts school system.

]]> http://www.prisonersofthecensus.org/news/2011/09/14/10-years/feed/ 2 http://www.prisonersofthecensus.org/news/2011/08/17/poll/ http://www.prisonersofthecensus.org/news/2011/08/17/poll/#comments Wed, 17 Aug 2011 14:07:18 +0000 Peter Wagner http://www.prisonersofthecensus.org/news/?p=3386 A Quinnipiac University poll released last week reported that New York State

voters say 60 – 25 percent that prison inmates should be counted as residents of their home districts, not of where they’re imprisoned. Republican and upstate voters support counting inmates in their homes, not their prisons.

The poll was conducted from August 3 – 8, with 1,640 registered voters. The margin of error was +/- 2.4 percentage points.

On August 4, New York’s redistricting task force announced — finally — that it would comply with state law and count incarcerated people at their home addresses. Nine state senators, however, are still suing to overturn the law.

]]> http://www.prisonersofthecensus.org/news/2011/08/17/poll/feed/ 2 http://www.prisonersofthecensus.org/news/2011/07/28/at-ncsl/ http://www.prisonersofthecensus.org/news/2011/07/28/at-ncsl/#comments Thu, 28 Jul 2011 15:39:01 +0000 Peter Wagner http://www.prisonersofthecensus.org/news/?p=3152 Brenda Wright of Demos and I will be attending the National Conference of State Legislatures Summit in San Antonio, Texas on August 9-10, 2011. If you will be there, too, and you want to set up a time to talk with us about how your state or local government can avoid prison-based gerrymandering, please don’t hesitate to contact us. We’re looking forward to meeting you!
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