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September 30, 2014

Dēmos and Prison Policy Initiative Applaud Senators Rosenberg, Chang-Diaz, and Dorcena Forry and Representatives Moran, Carvalho, and Rushing for Leadership to Protect One Person, One Vote Principle

On September 12 2014, the Massachusetts legislature sent the United States Census Bureau a resolution adopted by both chambers, calling on the Census Bureau to reform its outdated practice of enumerating incarcerated persons as "residents" of the prisons in which they are temporarily incarcerated. This practice leads state and local governments to violate the constitutional principle of one person, one vote by granting additional undue political clout to voters who live near prisons and diluting the votes cast by everyone else. As the resolution explains:

"Census data results in distortions of the one-person, one-vote principle in drawing electoral districts in Massachusetts, diluting the representation of the majority of districts that do not contain prisons."

Massachusetts’ resolution urges the Census Bureau to provide states with redistricting data that counts incarcerated persons at their residential address.

In response to these developments, Dēmos and the Prison Policy Initiative, non-partisan public policy organizations concerned about fair electoral representation, released the following statement:

"A prison is not a home," said Brenda Wright, Vice President for Legal Strategies at Dēmos. "Prison-based gerrymandering distorts democracy and fair representation in Massachusetts, and should not be tolerated in our state. Dēmos applauds the leadership of Senators Rosenberg, Chang-Diaz, and Dorcena Forry and Representatives Moran, Carvalho, and Rushing in achieving passage of the resolution urging the Census Bureau to count incarcerated persons in their home communities, where they are considered to reside for virtually all legal purposes."

Dēmos and the Prison Policy Initiative have long partnered in the goal of ending prison-based gerrymandering. "The national trend in state and local governments of rejecting prison gerrymandering sends a clear message to the Census Bureau that it’s time to update the residence rules," said Peter Wagner, Executive Director of the Prison Policy Initiative. "I’m proud of the Massachusetts Legislature’s steps to urge the Census Bureau to end prison gerrymandering nationwide 2020."

During the public hearings on redistricting in Massachusetts following the 2010 Census, Dēmos and PPI were among many groups and individuals urging the Massachusetts legislature to add its voice to those of other stakeholders calling for change in how the Census Bureau enumerates incarcerated persons.

The Special Joint Committee on Legislative Redistricting in Massachusetts took note of these concerns in its final report (downloads PDF), devoting about a quarter of the redistricting report to the vote dilution caused by the Census Bureau's decision to tabulate incarcerated people as residents of the prison, and suggesting this resolution as their first key recommendation.

Dēmos and PPI strongly applaud the Massachusetts legislature for its leadership in adopting this recommendation and calling for permanent, nation-wide reform of how incarcerated persons are tabulated in the Census. The Massachusetts Legislature’s resolution sends a strong message that Massachusetts residents, and all U.S. voters, deserve to have a fair say in elections. It’s time for the Census Bureau to do its part.

The full text of the resolution is:

WHEREAS, obtaining an accurate count of the population is so vital to representative democracy that the framers of the United States Constitution addressed the issue of the census and apportionment in the opening paragraphs of the Constitution; and

WHEREAS, the Massachusetts Constitution requires that federal census data be the basis for state redistricting; and

WHEREAS, the Census Bureau currently has a policy of counting incarcerated people at the address of the correctional institution, even though for other legal purposes their home address remains their legal residence; and

WHEREAS, this Census data results in distortions of the one-person, one-vote principle in drawing electoral districts in Massachusetts, diluting the representation of the majority of districts that do not contain prisons;

WHEREAS, the simplest solution to the conflict between federal constitutional requirements of "one person, one vote" and Massachusetts constitutional requirements of using the federal census is for the Census Bureau to publish redistricting data based on the location of an incarcerated person’s residence, not prison location; and

WHEREAS, the Census Bureau has already recognized the demand from states and counties for data that better reflects their actual populations, and has agreed to release data on prison populations to states in time for redistricting, enabling some states to individually adjust the population data used for redistricting; and

WHEREAS, Public Law 94-171 requires the Census Bureau to work with states to provide geographically relevant data and the Census Bureau has been responsive to state’s data needs for the past 3 decades; now therefore be it

RESOLVED, that the Massachusetts General Court hereby urges the Census Bureau, in the next Census and thereafter, to provide states with redistricting data that counts incarcerated persons at their residential address, rather than the address of the correctional institution where they are temporarily located; and be it further

RESOLVED, that a copy of these resolutions be transmitted forthwith by the Clerk of the Senate to the Director of Census Bureau.


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February 19, 2014

Plan violates ‘one person, one vote’ principle of the U.S. Constitution

FOR IMMEDIATE RELEASE: Wednesday, February 19, 2014

Contact:
Steven Brown, ACLU of Rhode Island, riaclu@riaclu.org, 401 831-7171
Alex Amend, Dēmos, aamend@demos.org, 917-822-7405
Aleks Kajstura, Prison Policy Initiative, akajstura@prisonpolicy.org, 413-527-0845
Inga Sarda-Sorensen, ACLU National, media@aclu.org, 212-549-2666

CRANSTON, R.I. – Local residents joined the ACLU of Rhode Island today to sue the City of Cranston, charging that the 2012 redistricting plan for the City Council and School Committee violates the one person, one vote principle of the U.S. Constitution by counting incarcerated people in their prison location as if they were all residents of Cranston.

Because those incarcerated were counted as Cranston residents, three voters in the prison’s district have as much voting power as four voters in every other city district, according to Census Bureau data. Cranston residents Karen Davidson, Debbie Flitman, Eugene Perry, and Sylvia Weber have joined the ACLU of Rhode Island as plaintiffs in the case. They are represented in federal court by Dēmos, the Prison Policy Initiative, and the American Civil Liberties Union.

Plaintiff Davidson said today: “As a long-time resident and taxpayer of Cranston, I am deeply concerned that the City Council decided in 2012 to perpetuate this voting inequity, especially after the ACLU pointed out the constitutional problems with it. It is time for city officials to show some leadership and stop wasting taxpayers’ money defending themselves from legal challenges like this.”

The 2012 redistricting plan counted the population of Rhode Island’s only state prison complex, the Adult Correctional Institutions, as residents of Ward 6 even though the overwhelming majority of these individuals are not true residents of the district, but instead remain residents of their pre-incarceration community for virtually all legal purposes, including voting.

“Using the people incarcerated at the ACI to pad the resident population of Ward 6 is not only irrational, but also unconstitutional. Over 200 municipalities and counties across the country actively avoid this ‘prison gerrymandering’ when redistricting,” said Aleks Kajstura, Legal Director at the Prison Policy Initiative. “There is no reason for Cranston to give extra representation to a select group of residents just because they happen to live near a prison.”

According to Census Bureau data, without the incarcerated population, Ward 6 has only 10,209 true constituents. Yet those constituents now wield the same political power as the roughly 13,300 constituents in each of the other wards. This dilutes the voting strength and political influence of citizens residing outside of Ward 6, in clear violation of the Equal Protection requirements of Section 1 of the Fourteenth Amendment to the U.S. Constitution.

“The people incarcerated in Cranston cannot vote in local elections, visit with their elected officials, or use the public library,” said Adam Lioz, Demos counsel. “So, they should not be used to pad districts, skewing voting power in violation of the one person, one vote principle. The City Council should do the right thing and correct its redistricting process.”

“All the voters of Cranston should have an equal say in who their elected officials should be. When a citizen exercises their fundamental right to vote, they expect that their vote will be counted equally, not as if it were only three-fourths of another citizen’s vote. Cranston elected officials should stop playing games and restore fairness to the democratic system,” said Sean Young, staff attorney with the ACLU’s Voting Rights Project.

ACLU of Rhode Island executive director Steven Brown said, “In 2012, the ACLU testified before the City Council and urged members to draw district lines in a way that would protect the principle of ‘one person-one vote.’ More than 200 counties and municipalities facing prison gerrymandering have pro-actively addressed the problem. It is unfortunate that the Cranston City Council refused to do so, leaving us no choice but to file this lawsuit.”

The complaint, Davidson v. City of Cranston, was filed in U.S. District Court in Rhode Island. A copy of the complaint is here: http://www.prisonersofthecensus.org/davidson/complaint.pdf

The lawsuit is being handled locally by ACLU of RI volunteer attorney Lynette Labinger, who only two years ago in a highly-publicized case successfully sued Cranston officials over the display of a prayer banner in a high school auditorium.

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by Leah Sakala, September 27, 2013

Thumbnail of New York Times editorial

The New York Times published a strong editorial today calling on the Census Bureau to end prison gerrymandering by tabulating incarcerated people at their home addresses in 2020:

[Prison gerrymandering] distorts the political process and raises concerns about the fairness of the census process itself. That’s reason enough for the bureau to solve this problem now.


by Peter Wagner, May 17, 2013

Acting Director explains Bureau’s immediate priorities but sidesteps request to prioritize developing a solution to prison gerrymandering

The Census Bureau has replied to the February 14 letter from 210 organizations urging it to make “developing a methodology to tabulate incarcerated people at their home addresses a near-term priority.” I wanted to share the Census Bureau’s response, along with some of my thoughts about it. In a nutshell, the Bureau is aware of our organizations’ concerns about prison gerrymandering, but side-stepped our request to prioritize developing a solution.

Our coalition letter was intended to inform the Census Bureau that a diverse group of stakeholders wants the agency to start planning how to tabulate incarcerated people at home. In our view, the Bureau needs to recognize that the prison count is the largest and most visible failing with regard to where it tabulates people in the decennial enumeration, and start researching solutions now.

But in his reply to our letter, Acting Director Thomas Mesenbourg explained that the Bureau would not focus, in the near term, specifically on the issue of where the census tabulates incarcerated people. Instead, Mr. Mesenbourg described how researching solutions to prison gerrymandering fits into the Bureau’s current longer-term agenda: as one part of a much broader inquiry on residence rules that will take place — budget permitting — in Fiscal Year 2015. That falls far short of what we asked for, but the clarity of the Bureau’s response is helpful in determining our next steps. I wanted to share some further thoughts about the Acting Director’s letter, and some ideas moving forward.

The Bureau’s immediate priorities

The reply letter nicely summarizes the overall challenges the Bureau faces to maintain the quality of the decennial census while controlling costs, listing the four areas where the Bureau is currently focusing its energy. The Bureau then gives an update on an important moving target: exactly when research on improving the group quarters count could take place.

The problem of prison gerrymandering may be one of the most glaring defects in the Census, but, as the reply letter explains, the Bureau is instead prioritizing work on fundamental changes in the structure and operations of the decennial census in order to trim several billion dollars from the cost. I can see how the Census Bureau might, in contrast, view improving the tabulation of just one group of people — no matter how glaring the problem — as a lower priority.

The strategic challenge for our movement is not the complexity of the research required, it is the timing. Improving how incarcerated people are counted is not rocket science, but it does requires diligent planning. After all, people in prisons and jails are the only population in the country that the government counts multiple times every day. The Bureau needs sufficient time to find solutions to legitimate questions about the best way to collect and process these data.

In the reply letter, the Acting Director says that “research [on] other aspects” of the 2020 Census can begin only after the “high-level design” is completed, in 2015. This delay is potentially, though not definitively, problematic for the efforts to end prison gerrymandering by the next redistricting cycle. 2015 isn’t necessarily too late to begin researching how to tabulate incarcerated people at home in 2020, but it leaves a very small window of opportunity because the details of the 2020 Census will be locked in place long before 2020 rolls around. Unless the Bureau articulates a clear intent to pursue methods to tabulate incarcerated people at their homes of record, the passage of time will leave the Bureau will no choice but to continue its outdated methodology in the 2020 Census.

No clear statement on research priorities

While our letter acknowledged the Bureau’s budgetary challenges, our letter asked the Bureau to include ending prison gerrymandering in its near-term priorities. Unfortunately, the reply did not address the matter of priorities directly or explain why the Bureau can’t begin the process of planning improved ways to tabulate incarcerated people while it completes redesigning other components of the Census. Supporters of the constitutional principle of “One Person, One Vote” should be very concerned by the prospect of relegating the question of how incarcerated people are counted — the most visible fairness flaw in the decennial census — to only one piece of a larger research question that will not start until 2015, budget permitting.

The Role of Congress and the Bureau’s fear of controversy

The Census Bureau has the power to end prison gerrymandering, and the letter’s summary of the Bureau’s residence rules methodology since the Census Act of 1790 supports our position that the Bureau has the authority to revise its methodology to keep pace with social and demographic change. The question of where to tabulate incarcerated people is clearly within the Bureau’s discretion, but, as the Acting Director noted, the Bureau looks to Congress before making any changes that could be vulnerable to criticism.

Unfortunately, this fear of political controversy may be leading the Census Bureau to prioritize the consequences of changing the residence rule over the consequences of the status quo for the health of our democracy. The Acting Director’s one nod to the rule’s larger implications for democracy is that “[w]e understand fully the major impact on different states as well as counties and municipalities … [during] redistricting if we considered changing the residence rule” (emphasis added). Ironically, the Bureau’s own commissioned experts at the National Research Council of The National Academies had no such problem acknowledging the need for change, noting the current rule’s detrimental impact on democracy. During last decade’s review of the residence rules, the expert panel concluded that “[t]he evidence of political inequities in redistricting that can arise due to the counting of prisoners at the prison location is compelling.”

Even as the Acting Director’s reply letter stating that the Bureau “must inform and try to ascertain the will of the Congress on such a major change” was in the mail to me, the Census Bureau received evidence of congressional concern about the Bureau’s current policy. On April 1, 2013, 18 members of Congress wrote to the Bureau about why properly tabulating incarcerated people is important to state and local governments. They wrote, “We… urge the Census Bureau to take the steps necessary to ensure that Census 2020 counts prisoners at their home addresses to assist state and local governments in accurately representing these populations.”

Finally, the Bureau’s concern that “major change … regarding apportionment” necessitates the assent of Congress is a red herring. Congressional apportionment is unlikely to be affected by tabulating incarcerated people at home because most people do not cross state lines when they are incarcerated.

Moving forward

But beyond congressional weigh-in, the Census Bureau wants to get the input of as many stakeholders as possible before making a change to where incarcerated populations are counted. That is yet another reason why the comparatively straightforward activity of improving where incarcerated people are tabulated needs to start sooner rather than later.

Finally, the Bureau’s reply is a good indication of how much work we have left to do to establish why it is necessary to change where incarcerated people are tabulated. The letter, in my view, both understates the impact of prison gerrymandering on local and state governments and undervalues the Bureau’s own significant efforts to help those local governments by producing the Advance Group Quarters Summary File. This file, which the Bureau produced for the first time ever in 2010, was incredibly helpful to many state and local governments that wanted to eliminate, minimize or at least consider avoiding the effects of prison gerrymandering.

The driving reason to address prison gerrymandering is its dramatic impact on state and local governments. It is easy to understand why the Census Bureau, as a federal agency, might prioritize questions of congressional apportionment over state legislative, and even county/municipal, redistricting. But congressional apportionment is not the primary concern because prison populations are rarely significant in determining a 700,000 person Congressional district. The real impact of prison gerrymandering is at the state legislative level and, especially, at the county/municipal level. The smaller the legislative district, the more likely it is that a single prison could make up a large part, or even an actual majority, of the district. Taken together, prison gerrymandering’s impact is pervasive, and the overwhelming majority of the nation will benefit in at least one way when the practice comes to an end. As general messaging point, our movement needs to ensure that the real reasons to end prison gerrymandering remain in focus.

Moving forward, it is imperative that the Census Bureau continue to hear from all of its stakeholders — at the federal, state and local levels — that now is the time to address the problem of prison gerrymandering in order to resolve the problem by 2020. We shouldn’t have to wait until 2030 to fix such an obvious flaw in the Census Bureau’s methodology that compromises state and local democracy around the nation.


February 14, 2013

FOR IMMEDIATE RELEASE: FEBRUARY 14, 2013

Contact:
Leah Sakala, Prison Policy Initiative, (413) 527-0845
Lauren Strayer, Dēmos, Lauren Strayer, (212) 389-1413

Easthampton, MA – Today, more than 200 civil rights, voting rights and criminal justice organizations sent a letter calling on the U.S. Census Bureau to seize a timely opportunity to research alternative ways to count incarcerated people in the decennial Census.

letter thumbnail

The letter expresses a national concern that the Bureau’s method of counting incarcerated people at prison locations, rather than in their home communities, leads to an unequal distribution of political power in state and local governments known as “prison gerrymandering.” The letter explains that incarcerated people are not considered residents of prisons for other purposes, but the Census Bureau’s method “concentrates a population that is disproportionately male, urban, and African-American or Latino in approximately 1,500 federal and state prisons that are far from their home communities.” The 210 organizations wrote, “We are concerned that the Census Bureau’s tabulation procedures distort the redistricting process, giving extra political influence to people who live near prisons while diluting the votes of residents in every other legislative district.”

Although the 2020 Census is seven years away, the Census Bureau is already deep in the planning process. The letter calls on the Bureau to pave the way for a national end to prison gerrymandering in 2020 by prioritizing research on how to count incarcerated people at home in the next census. “In order to develop the best possible methodology for fixing prison gerrymandering, the Census Bureau needs to address this research question now,” said Brenda Wright, Vice President of Legal Strategies at Dēmos.

The letter charges that “…Failing to count incarcerated people at home for redistricting purposes undermines the constitutional guarantee of ‘one person, one vote’, with critical implications for the health of our democracy.” For that reason, the organizations note, four states and more than 200 counties and municipalities have made their own adjustments to Census Bureau data in order to avoid prison gerrymandering. But while state and local governments are increasingly devising their own solutions, many face unique constraints and only the Census Bureau can implement a comprehensive and standardized national solution.

The letter credits the Census Bureau with recognizing that prison gerrymandering causes significant problems for state and local redistricting. Specifically, the Bureau began to address the problem by releasing 2010 Census data on prison populations ahead of schedule in order to allow state and local governments to adjust their redistricting data to avoid prison gerrymandering. “The Bureau has made great progress towards enabling state and local governments to find creative solutions to prison gerrymandering,” said Peter Wagner, Executive Director of the Prison Policy Initiative, “and now the Bureau must use the current planning period to ensure that the 2010 Census is the last one to tabulate two million incarcerated people outside their home communities.

The full text of the letter, including a list of signers, is available at http://www.prisonersofthecensus.org/letters/feb2013.html.


by Peter Wagner, December 12, 2012

Report from the Chairs of the Special Joint Committee on Redistricting

The Co-Chairs of the Massachusetts Special Joint Committee on Redistricting today issued a report reviewing their accomplishments and their recommendations on issues they discovered while redrawing the Massachusetts district lines.

Senate Chair Stanley Rosenberg and House Chair Michael J. Moran devote about a quarter of their report to reviewing the vote dilution caused by the Census Bureau’s decision to tabulate incarcerated people as residents of the prison location instead of at their legal home addresses. The current system, the report observes, “inflates the relative strength of votes by residents in that district [containing a prison] at the expense of voters in all other districts in the Commonwealth.”

The co-chairs discuss the unique requirements of the Massachusetts constitution, noting that it would be theoretically possible to propose a constitutional amendment that would allow the state to end prison gerrymandering by state legislation. They conclude, however, that the “most expedient and streamlined avenue” towards a solution is for the Census Bureau to tabulate incarcerated people at their home addresses. Action at the Census Bureau would ensure a “systematic and consistent tabulation approach” that would relieve legislatures of the burden of each adjusting their own redistricting data.

The message is clear:

“The tabulation of prisoners should be at the forefront of Bureau priorities in evaluating and adjusting how the 2020 U.S. Census will be conducted.”

“We agree that the way prisoners are currently counted does a disservice to the state and should be changed.”

But the co-chairs did not intend the report to be the final word on the matter. The very first recommendation in the report is a call for the Massachusetts legislature to:

“Pass a resolution by the General Court requesting that the U.S. Census Bureau change the residency classification for counting prisoners at their legal residence prior to incarceration. The Legislature could consider a constitutional amendment in the event the federal government does not act on our recommendations.”

For more information, see:


by Leah Sakala, August 16, 2012

Somerset County emblem

The Somerset Herald reports that a county in Maryland that had never elected an African American to county office may soon elect two, thanks to the Maryland law that ended prison-based gerrymandering. Although Somerset County Maryland contains a sizable African-American population, first slavery, then Jim Crow, and then prison-based gerrymandering prevented the African-American community from being able to elect a candidate of its choice for hundreds of years.

Activists from Somerset County played a central role in passing Maryland’s first-in-the-nation law requiring that incarcerated people be counted at their home addresses for state and local redistricting purposes. This law capped an effort to secure fair representation in Somerset County that spanned several decades. In the 1980s, in order to settle a Voting Rights Act lawsuit brought by local activists, the county agreed to create a majority minority district to allow the African-American community to elect a candidate of its choice.

But the effort was foiled because the district was drawn based on U.S. Census data that counted the people incarcerated in the Eastern Correctional Institution as residents of the county. When county officials redistricted after the 1990 Census, they drew a district that appeared to be majority African American. But because a large portion of the minority population that was counted in the new district was made up of incarcerated people who were not allowed to vote, there weren’t enough actual African-American voters in the district to elect the candidate of their choice. As Deborah Jeon from the Maryland ACLU explained,

“I wasn’t here in ’87 when the prison opened, but I was here in 1990 and it was on my radar screen that something in Somerset was amiss. It didn’t seem to be working fairly. We began to focus on the prison and the effect of the prison on the election.”

The handful of voters who lived near the prison had more than twice the representation on the county commission that their numbers warranted, and including the prison in that district made it impossible for African Americans anywhere in the county to elect a candidate of their choice. In terms advancing minority voting power, the county lived up to its official motto: “Semper Eadem” or “Always the Same.”

But in 2009, a coalition of local activists worked together with the Somerset County chapter of the NAACP, the Maryland ACLU, and the Legislative Black Caucus to document the problem and find a remedy. Their efforts resulted in a state-wide solution to the problem of prison-based gerrymandering that ensured that the African-American community of Somerset has the opportunity to be fairly represented in county affairs.

The No Representation Without Population Act of 2010 ensures that everyone has the same access to government regardless of whether or not they live next to a large prison, and the law ended the practice of giving extra representation to a state legislative district in western Maryland that was 18% incarcerated. The law also ensures that no district in the state is able to masquerade as a functional majority-minority district solely because it contains a large prison population.

With the endorsement of the U.S. Supreme Court in June, the No Representation Without Population Act is firmly established as one of the major civil rights victories of the decade. And when Somerset County holds the next County Commissioner election in 2014, Somerset residents will be able to choose a Board of Commissioners that faithfully reflects the needs and interests of the county’s actual population.


June 25, 2012

Prison Policy Initiative and Demos logos

For Immediate Release: June 25, 2012

Contact:
Dēmos Anna Pycior 212-398-1408 apycior@demos.org
Prison Policy Initiative Peter Wagner 413-527-0845

Washington, DC - The U.S. Supreme Court today upheld the constitutionality of Maryland’s groundbreaking “No Representation Without Population Act,” which counts incarcerated people as residents of their legal home addresses for redistricting purposes. The 2010 law was a major civil rights victory that ended the distortions in fair representation caused by using incarcerated persons to pad the population counts of districts containing prisons.

The law upheld today is a state-based solution to the long-standing problem in the federal Census of counting incarcerated people as residents of the prison location, even though they cannot vote there and remain residents of their home communities for virtually all other legal purposes. The practice of prison-based gerrymandering particularly harms urban communities and communities of color that disproportionately contain the home residences of incarcerated persons. Other states have since passed similar laws, but the Maryland law was the only one to go to the Supreme Court.

“Today’s Supreme Court decision in Fletcher v. Lamone affirmed the constitutional ‘one person one vote’ foundation of our decade-old campaign to end prison-based gerrymandering,” said Peter Wagner, Executive Director of the Prison Policy Initiative and the nation’s leading expert on how the Census Bureau’s practice of counting incarcerated people as residents of the prison locations harms the democratic process.

The lawsuit was filed last November, and the civil rights community responded quickly to brief the lower court on the constitutionality of Maryland’s law. In an amicus brief, the Prison Policy Initiative and Dēmos, along with the Howard University School of Law Civil Rights Clinic, the ACLU of Maryland, the Maryland and Somerset County Branch NAACP, and the NAACP Legal Defense and Education Fund explained the basis and need for the landmark law. The lower court’s opinion, affirmed today, rejected the allegation that the law was somehow dilutive of minority voting rights, finding that the No Representation Without Population Act was an historic 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.”

Brenda Wright, Vice President for Legal Strategies at Dēmos, hailed today’s ruling in Fletcher v. Lamone: “The Supreme Court’s ruling is a huge victory for the national campaign to end prison-based gerrymandering. This decision sets an important precedent that will encourage other states to reform their redistricting laws and end the distortion in fair representation caused by treating incarcerated persons as residents of prisons.”

Today’s decision in Fletcher v. Lamone constitutes the most significant court ruling to date on the factual and legal justification for states to reallocate incarcerated persons to their home residences for purposes of redistricting. The ruling upheld today noted that “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.’” It further noted that

“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.”

The plaintiffs in Fletcher challenged Maryland’s right to correct where incarcerated people are counted for the purpose of drawing congressional districts. “Congressional districts are held to the highest standards to ensure population equality.” said Brenda Wright of Dēmos. “The Court’s decision that Maryland’s law satisfies the strict standards applicable to congressional districts clears the path for other states to pass similar laws at all levels of government.” New York, Delaware and California have already enacted similar legislation, and advocates are calling on the Census Bureau for a national solution. “Today’s ruling by the U.S. Supreme Court affirming that Maryland’s law both meets constitutional requirements and was fairly implemented will hopefully encourage the Census Bureau to change its policy on where incarcerated people are counted in the 2020 Census” said the Prison Policy Initiative’s Peter Wagner.

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by Peter Wagner, May 22, 2012

William Mitchell Law Review, Volume 38, Number 4

The William Mitchell Law Review has published my new article, “Breaking the Census: Redistricting in an Era of Mass Incarceration.”

Above the 98 footnotes is a highly-readable introduction to the problem of prison-based gerrymandering and its remedies. The final section of the article discusses best practices for state and local governments that wish to abolish prison-based gerrymandering.

The article is in Volume 38, Number 4, a special issue called, “Incarceration in the United States: Issues in America’s Jails and Prisons.”


by Leah Sakala, March 5, 2012

Kansas City Star

Mary Sanchez has just released a great piece in the Kansas City Star about how prison populations are a big deal in Kansas state legislative redistricting.

She explains that the high concentration of correctional facilities in a single legislative district may cause the most dramatic instance of artificial vote inflation in any state district in the nation:

Kansas has the potential for shenanigans like no other state, thanks to the high concentration of inmates in the Leavenworth area.

Lumped together and tallied, they have a presence that can be used to build a distorted state Senate or House district. Prisoner counts can dilute voting power in some areas while falsely ramping it up for voters living near prisons.

She points out that not only does Kansas have the ability to refuse to engage in prison-based gerrymandering, its current practice of reallocating military and school populations for redistricting purposes has served as a national model for redistricting population adjustments:

Remember that standard of one person, one vote from grade school civics? Prison gerrymandering undercuts it because maps are supposed to be drawn so districts have relatively equal population bases.

The Leavenworth area includes the U.S. Penitentiary, Leavenworth Detention Center and Lansing Correctional Facility.

One of the proposed maps being considered by the legislature is to redraw House District 40 by including all of the facilities. That’s a potential bump of more than 5,000 people. It’s an unfair tally compared to portions of the state without prisons.

The U.S. census counts prisoners by where they are incarcerated, rather than their home address. But pushback by groups like Wagner’s and other voting rights advocates convinced the Census Bureau to separate out those numbers after the 2010 count.

Meaning if Kansas wanted to play this game fairly, it could.

In fact, Kansas is considered a model for addressing the temporary residency of college students and military personnel.

The Kansas legislature needs take swift action to remove prison populations from the population data used for redistricting purposes. Otherwise the state will dilute the votes of every resident who doesn’t live next to a prison, and become a dramatic national symbol of how prison-based gerrymandering dilutes your right to vote.


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