Press Release archives

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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October 30, 2013

For more information contact:
Aleks Kajstura
(413) 527-0845

Easthampton, Mass. – Chances are, if there’s a prison on the other side of town, your voice in town affairs is muffled.

Why? Because the Census Bureau counts incarcerated people at prison locations—where they neither vote nor reside— rather than at their home addresses. When governments use this data to draw electoral districts, they grant undue political power to people who live near prisons and dilute the votes cast everywhere else. Although not always intentional, this “prison gerrymandering” often results in significant voting inequality. A new report from the Prison Policy Initiative, reveals that the Census Bureau’s counts of incarcerated populations lead 7 Massachusetts towns to dilute the votes of residents who do not live in the precinct that contains a correctional facility.

In both Ludlow and Plymouth, for example, 35% of a precinct’s representatives at town meeting are attributed to the jail population. That gives any 65 people who live in those precincts the same voice at town meeting as 100 residents from any other precinct.

These phantom constituents inflate the voice of the actual residents of that precinct and in turn dilute the votes of any resident in other precincts. “When the first town meeting in the United States was held 380 years ago in Dorchester, prison counts were probably the last thing on the participants’ minds,” said report author Aleks Kajstura. “But today, the way the Census Bureau counts people in prison is a big problem for the principle of ‘one person one vote.’”

The towns of Billerica, Dartmouth, Dedham, Framingham, Ludlow, Plymouth, and Walpole each contain a precinct where 17% to 35% of the precinct’s representatives are directly attributable to the Census Bureau’s prison miscount, finds the report.

“For most of these Massachusetts towns, the Census Bureau’s prison miscount just wasn’t on the radar,” Kajstura said. “But fortunately, towns can make simple adjustments to keep the Bureau’s prison counts from distorting local democracy.” The report concludes that even though the problem of prison gerrymandering originates from the Census Bureau’s methodology, towns can take action to address prison gerrymandering.

Additionally, a resolution calling on the Census Bureau to solve the problem nationwide by agreeing to tabulate incarcerated people as residents of their home addresses in the decennial census is currently pending in the Massachusetts Legislature, and just passed out of Joint Committee on Election Laws. The new Director of the Census Bureau, John Thompson, recently stated that he has not yet decided how prison populations will be counted in the 2020 Census.

April 17, 2013

Cover of Imported 'Constituents': Incarcerated People and Political Clout in Connecticut

Contact:
Prison Policy Initiative – Leah Sakala (413) 527-0845
Common Cause in Connecticut – Cheri Quickmire (860) 539-6846

If you don’t live next to a large prison, the General Assembly doesn’t think your vote is worth as much, charges a new report released this morning by the Prison Policy Initiative and Common Cause in Connecticut.

The report, “Imported ‘Constituents’: Incarcerated People and Political Clout in Connecticut,” examines how the state’s reliance on Census Bureau data – which counts incarcerated people as if they were residents of prison locations rather than their home communities — enhances the weight of votes cast in districts that contain prisons and dilutes the weight of a vote cast in all other districts. “About 10% of several Connecticut districts are made up of people who aren’t, by state law, residents of those districts,” said report author Peter Wagner.

The report finds that:

  • Almost half of the state’s prison population comes from the state’s five largest cities, but almost two-thirds of the state’s prison cells are located in just five small towns.
  • There are seven majority-White state house districts that claim at least 1,000 incarcerated people of color as residents of their districts.
  • Connecticut state law says that incarcerated people are residents of their homes, not the prison location.
  • Not all people in Connecticut prisons are barred from voting. Those who can vote – because they are awaiting trial or are not convicted of felonies — are required by state law to vote absentee as residents of their home districts.

The Connecticut Legislature is currently considering a bill, HB 6679, that would remedy the problem of prison gerrymandering by counting incarcerated people at their home addresses for redistricting purposes. “Right now, the Judiciary Committee has before them a bill that would end prison gerrymandering in Connecticut once and for all,” said Cheri Quickmire of Common Cause in Connecticut. “It’s time to pass this legislation and send the message that every Connecticut resident’s vote should count, regardless of whether or not he or she lives near a big prison.”

Four other states — New York, Maryland, Delaware, and California — have already passed similar legislation, and Maryland’s law was upheld by the U.S. Supreme Court last year.

The non-profit Massachusetts-based Prison Policy Initiative is the nation’s leading authority on how Census counts of prison populations distort the legislative redistricting process. For the last decade the organization has been leading a national movement calling on the Census Bureau to count incarcerated people at home, and the organization’s research inspired four states to pass legislation in 2010 and 2011 to end prison gerrymandering.

Common Cause in Connecticut is a nonprofit, nonpartisan citizens lobby dedicated to improving the way state government operates. Whether it is advocating for opening committee meetings to the public or compelling the passage of the strongest campaign finance law in the nation, Common Cause in Connecticut has been a leading voice in reforming state government.

“Imported ‘Constituents’: Incarcerated People and Political Clout in Connecticut,” is available at http://www.prisonersofthecensus.org/ct/

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March 20, 2013

For immediate release: March 20, 2013

Contact:
Virginia New Majority: Deshundra Jefferson, (347) 834-3035
Prison Policy Initiative: Leah Sakala, (413) 527-0845
Dēmos: Lauren Strayer, 212-389-1415 or lstrayer@demos.org

Governor signs HB1339, changes law that required some counties to dilute the votes of county residents who did not live adjacent to a prison

Virginia Governor Bob McDonnell on Monday signed HB 1339, which ends a state requirement that forced some local governments to engage in prison gerrymandering. The new law lifts limitations on which counties, cities and municipalities could exclude incarcerated populations for redistricting purposes. Rural counties that host prisons find that relying on the Census Bureau’s counts to draw districts can result in a single prison being the majority of a district, even though the incarcerated population is denied the right to vote. This distorts representation by giving disproportionate influence to the residents of the prison district and diluting the votes of residents of all other districts. The problem is often called “prison gerrymandering.”

“HB1339 caps a twelve-year effort to roll back a unique provision of Virginia law that barred local governments from making adjustments to the federal Census data,” said Peter Wagner, Executive Director of Prison Policy Initiative and a national expert on prison gerrymandering.

Virginia’s law now matches that of most states.

“Most states give local governments the choice to avoid prison gerrymandering, and a few states like Colorado and Michigan actually prohibit local governments from using Census Bureau prison counts to enhance the votes of some residents to the detriment of other residents,” said Brenda Wright, Vice-President for Legal Strategies at Dēmos.

“Ideally, the Census Bureau would tabulate incarcerated people where they reside, at home, so that all districts could be drawn more fairly” said Tram Nguyen, Deputy Director of Virginia New Majority, noting that incarcerated people can’t vote in Virginia but remain legal residents of their homes while they are incarcerated.

“But Virginia has today given rural counties the option to fix an obvious flaw in the decennial Census and draw fairer districts in the future. I expect most counties will take this opportunity when they next redraw their lines,” Nguyen added.

About the Virginia law

Prior to 2001, Virginia law required local governments to redistrict based on “figures … identical to those from the actual enumeration conducted by the United States Bureau of the Census” with no flexibility provided to correct for any inequities that might cause.

In 2001, the legislature amended the law to give some counties — those whose total population was at least 12% incarcerated — the option to exclude the prison population. This change freed some counties from the impossible situation of drawing districts that were entirely incarcerated, but still required counties like Southampton to draw a district where more than half of the population is in prison. Residents of that one district received twice the influence over Southampton County affairs as residents in other districts without the prison.

Efforts to amend the law in time for the 2011 redistricting were unsuccessful, but in 2012, the legislature unanimously passed legislation to give any jurisdiction faced with drawing a district that would be 12% or more incarcerated the option to adjust the Census and remove the non-resident prison population. The newest amendment extends the choice to avoid prison gerrymandering to all counties, cities and towns that contain correctional facilities.

HB 1339, sponsored by Delegate R. Lee Ware, Jr. (R-Powhatan) passed the House unanimously on January 23, and with bipartisan support in the Senate on February 15. The bill applies only to county, city or municipal redistricting, and does not apply to funding or other uses of Census data, including state redistricting.

National context

“My research has shown that the vast majority of counties and municipalities that host prisons reject prison gerrymandering. The majority of the exceptions are in states where state law is believed to require the absurd result of prison gerrymandering. Virginia fixed the problem with their state law. States like Minnesota, Tennessee and Wisconsin should follow Virginia’s lead,” said the Prison Policy Initiative’s Peter Wagner.

“By signing HB 1339, Governor McDonnell put Virginia in firmly in the camp of states that have rejected prison gerrymandering and helped ensure an equal voice for all citizens,” explained Brenda Wright of Dēmos. “Four states have recently passed legislation that ended prison gerrymandering for state legislative redistricting. The legislation in California and Delaware applies just to state legislative districts, but Maryland and New York both passed comprehensive legislation that applied to both state and local redistricting. Virginia has taken an important first step by freeing local governments from a state requirement at odds with the constitutional principle of ‘One Person One Vote’.”

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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.

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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March 27, 2012

For Immediate Release: March 27, 2012

Please Contact:
Dēmos Anna Pycior (212) 389-1408 apycior@demos.org
Prison Policy Initiative Peter Wagner (413) 527-0845

On Friday, Virginia Governor Bob McDonnell signed a new law that will give more rural counties the option of avoiding prison-based gerrymandering, helping to ensure fairer representation in local government. The law, HB13, passed both Houses unanimously. It was sponsored by Delegate Riley Ingram (R-Chesterfield, Henrico, Prince George, City of Hopewell).

“HB 13 is a step forward for fairness in redistricting,” said Peter Wagner, Executive Director of the Prison Policy Initiative. “Counties will no longer be required to pad certain districts with incarcerated persons who are not true residents of the prison district. Prison-based gerrymandering distorts our democracy, and HB13 will help end that practice.” Wagner submitted testimony in support of HB13, and worked with the Richmond Times-Dispatch, Roanoke Times, Powhatan Today, the News and Advocate, and the Free Lance-Star to raise awareness about prison-based gerrymandering.

“The trend is clear: states are rejecting prison-based gerrymandering. Virginia should be congratulated for taking this common-sense step to recognize that a prison is not a home and should not be treated as such in redistricting.” said Brenda Wright, Director of the Democracy Program at Dēmos, which partners with the Prison Policy Initiative on a national campaign to end prison-based gerrymandering.

About the Virginia law

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 incarcerated people – who by state law can’t vote and are not considered residents of the prison – as residents of the prison location. When Census data is used for rural county redistricting, this practice gives extra influence to the people who live next to a large prison, and dilutes 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 expansion of the law signed by the Governor on Friday extends the option to avoid prison-based gerrymandering to any county faced with drawing a county legislative district that is more than 12% incarcerated. Ideally, the bill would have passed last year, while redistricting was still underway. Identical language unanimously passed the House of Delegates last year, but died in Senate committee.

National context

In most states, local governments are free to avoid prison-based gerrymandering. Virginia was one of a handful of exceptions, where local redistricting is regulated in a way that is blind to the problem of prison-based gerrymandering.

Virginia’s new law brings the state in line with a national trend towards protecting local governments from the vote dilutive harm of prison-based gerrymandering. Michigan, Colorado, and New Jersey statutes explicitly either allow or require local governments to avoid prison-based gerrymandering. In Mississippi, California, and Illinois, court cases and state attorney general opinions have supported local governments in adjusting the census to avoid prison-based gerrymandering. The first two states that ended prison-based gerrymandering for state legislative districts, Maryland and New York, also passed legislation that ends prison-based gerrymandering in local governments as well.

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March 16, 2012

For Immediate Release: March 16, 2012

Please Contact:
Brennan Center for Justice Madeline Friedman (646) 292-8357 madeline.friedman@nyu.edu
Center for Law & Social Justice April Silver (718) 756-8501 pr@akilaworksongs.com
Dēmos Anna Pycior (212) 389-1408 apycior@demos.org
LatinoJustice John Garcia (212) 739-7581 jgarcia@latinojustice.org
NAACP Legal Defense Fund Mel Gagarin (212) 965-2783 mgagarin@naacpldf.org
NYCLU Michael Cummings (212) 607-3300 x368 mcummings@nyclu.org
Prison Policy Initiative Peter Wagner (413) 527-0845

New York, NY – New Yorkers enjoyed a clear victory today, as plaintiffs in the Little v. LATFOR case dropped their challenge of the state law ending prison-based gerrymandering.

The law, known as Part XX, was passed in 2010 to increase fairness in redistricting by counting incarcerated people as residents of their home districts. The previous practice, often called prison-based gerrymandering, gave extra political influence to districts containing prisons, diluting the votes of every resident of a district with no (or fewer) prisons. The law corrects this bias and assures that all communities in New York have equal representation in our government.

A group of plaintiffs led by State Senator Elizabeth Little filed suit seeking to strike down the new legislation. She claimed that legislative districts — including her own, which contains 12,000 incarcerated persons — should be required to include prisoners when redistricting. After the lawsuit was filed, a Quinnipiac University poll showed that a majority of New Yorkers of all regions and parties supported the new law.

In December, New York Supreme Court Justice Eugene Devine ruled that the law was constitutional. The plaintiffs then sought to go directly to the Court of Appeals, bypassing the Supreme Court’s Appellate Division. The Court of Appeals declined to hear plaintiffs’ direct appeal on February 14. Plaintiffs then filed documents with the Appellate Division withdrawing the appeal.

The Brennan Center for Justice, the Center for Law & Social Justice, Dēmos, LatinoJustice PRLDEF, the NAACP Legal Defense and Education Fund, the New York Civil Liberties Union, and the Prison Policy Initiative represented 15 voters from around New York State who intervened in the lawsuit to defend the law. Attorneys for the organizations issued the following joint statement:

“Prison-based gerrymandering in New York unjustly diluted the voice of voters and gave undue political influence to districts with large prisons. By dropping this challenge, opponents acknowledged they were fighting a losing battle. As the redistricting process continues, we are pleased that incarcerated persons will be allocated where they belong — the communities from which they came and to which they overwhelmingly return. This victory helps ensure that all New Yorkers have an equal voice in our democracy.”

About Part XX and Prison-Based Gerrymandering

Part XX was a major civil rights victory that brought New York’s redistricting practices in line with the New York Constitution’s declaration that a prison is not a residence.

Enhancing the weight of a vote cast in a district with a prison dilutes the weight of a vote cast in all other districts without prisons. According to research by the Prison Policy Initiative conducted after the 2000 Census, prison-based gerrymandering has a particularly negative impact on the voting strength of African-American and Latino communities, because 81 percent of the state’s prison population is African-American or Latino, but 98 percent of the state’s prison cells are in disproportionately white Senate districts.

The most dramatic examples of prison-based gerrymandering are in upstate counties and cities. For example, half of a council ward in the city of Rome, New York is incarcerated. As a result, the actual residents of that ward wield twice the influence of other city residents. Recognizing the distortions caused by prison-based gerrymandering at the local level, 13 New York counties with large prisons — including four in plaintiff Senator Little’s district — have historically exercised their discretion to remove the prison populations prior to redistricting.

The law brings consistency to redistricting in New York, prohibiting both the state and local governments from giving extra political influence to districts that contain prisons.

The legal documents can be found at the Prison Policy Initiative web page for Little v. LATFOR.

March 14, 2012

Washington University in St. Louis

FOR IMMEDIATE RELEASE:
March 14, 2012

CONTACT:
John C. Drake, jcharlesdrake@gmail.com, (508) 340-0881

When states include prison populations in their legislative district maps, prison-host communities gain political power in the same way Southern states used slaves to gain extra representation in Congress, says a new article by John C. Drake, published in the Washington University Journal of Law & Policy. The article, “Locked Up and Counted Out: Bringing an End to Prison-based Gerrymandering” addresses a long-standing flaw in the U.S. Census that has been receiving considerable attention only in the last decade.

The U.S. Census counts people in prison as residents of the prison location, even though they remain residents of their pre-incarceration homes. Prisoners, who in 48 states may not vote, are disproportionately people of color; but prisons are typically located in disproportionately white, rural areas. When states use this data to draw districts, the result gives extra political influence to the districts that contain prisons, diluting the votes of everyone else. The New York Times editorial page coined the phrase “prison-based gerrymandering” to describe the practice.

“Comparing prison-based gerrymandering to the infamous three-fifths clause is a common rhetorical device,” says Peter Wagner, Executive Director of the Prison Policy Initiative and the nation’s leading expert on prison-based gerrymandering. “But John Drake goes further, and puts prison-based gerrymandering in the historical context.”

Prior to the elimination of slavery following the Civil War, the U.S. Constitution counted slaves as three-fifths of a person. “This is commonly misunderstood as an insult to Black Americans. But the real injustice was counting the slaves at all and swelling the political clout of the slave-owning South,” said Drake, a former journalist and a third–year law student at Washington University School of Law in St. Louis, Missouri. “Prison-based gerrymandering uses mass incarceration as a device for creating a new injustice: the dilution of voting strength in the urban communities that most prisoners call home.”

“Four states have so far had the wisdom to pass legislation to fix the Census Bureau’s prison miscount and end prison-based gerrymandering,” says Peter Wagner. “John Drake’s article is a powerful argument for why more states should follow their lead.”

“It was only through long, if ill-advised, negotiation that the framers of the U.S. Constitution included the three-fifths clause, which gave extra representation to the slave states,” said author John Drake. “Prison-based gerrymandering, by contrast, is an accidental by-product of modern rates of high incarceration. The result is no less pernicious – political power gained at the expense of a captive, disenfranchised population. States must now choose between intentionally diluting the votes of their own citizens who lack the good fortune of living near a prison, and using the legislative process to negotiate a solution.

Drake’s article also notes:

  • The Census rules on which prison-based gerrymandering relies are internally inconsistent: for example, students in boarding school are counted as residents of the parental home, whereas children in juvenile detention centers are counted as residents of the detention centers.
  • Prison-based gerrymandering creates and strengthens rural state legislative districts, whose lawmakers’ interests often are at odds with the disproportionately black and urban prisoners on whose backs they’ve gained political power. The prisoners do not consider themselves constituents of those lawmakers, and the lawmakers typically do not treat them as such.
  • Rural county legislatures have adopted a patchwork of policies to avoid dramatic cases of vote dilution like that in Florida’s Calhoun County where almost half of one district is incarcerated, giving the residents of that county district twice the political influence of other Calhoun County residents.
  • Prison-based gerrymandering results in the dilution of minority voting strength, which invokes the protections of the Voting Rights Act.

The Washington University Journal of Law & Policy is committed to generating a symposium-based publication that brings together communities of scholars, through a mutual and collaborative student and faculty process, emphasizing existing and emerging visions of the law in relation to interdisciplinary and multicultural perspectives, the implications of technology, and the consequences of economic globalization for the purpose of influencing law and social policy.

The article is available on Lexis and Westlaw at 37 WASH. U. J.L. & POL’Y 237 (2012) and on the internet at http://law.wustl.edu/journal/37/Drake-1.pdf

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February 14, 2012

For Immediate Release: February 14, 2012

For more information, please contact:
Brennan Center for Justice Erik Opsal (646) 292-8356 erik.opsal@nyu.edu
Center for Law & Social Justice April Silver (718) 756-8501 pr@akilaworksongs.com
Dēmos Anna Pycior (212) 389-1408 apycior@demos.org
LatinoJustice Madeline Friedman (212) 739-7581 mfriedman@latinojustice.org
NAACP Legal Defense Fund Mel Gagarin (212) 965-2783 mgagarin@naacpldf.org
NYCLU Michael Cummings (212) 607-3300 x368 mcummings@nyclu.org
Prison Policy Initiative Peter Wagner (413) 527-0845

The New York Court of Appeals today declined to hear plaintiffs’ direct appeal in Little v. LATFOR, a lawsuit challenging New York’s law ending prison-based gerrymandering. The plaintiffs — who include upstate elected officials who would no longer unjustly benefit from claiming incarcerated people as residents of their districts — had sought to skip the Supreme Court’s Appellate Division and go directly to the Court of Appeals.

In December, New York Supreme Court Justice Eugene Devine ruled that the law was constitutional. Plaintiffs’ appeal will now proceed to the Appellate Division Third Department.

Attorneys for the 15 voters from around New York State who joined the suit as intervenor-defendants issued the following joint statement:

“Today’s decision leaves in place New York’s law ending prison-based gerrymandering, which advances fairness in redistricting and is in complete agreement with New York’s state constitution. The opponents of this law lost the policy debate in the legislature, and their efforts to reinstate the old unjust practice of prison-based gerrymandering have so far been unsuccessful in the courts. We look forward to defending this vital law at the appellate division.”

The organizations representing the fifteen voters in court were the Brennan Center for Justice, the Center for Law & Social Justice, Dēmos, LatinoJustice PRLDEF, the NAACP Legal Defense and Education Fund, the New York Civil Liberties Union, and the Prison Policy Initiative.

About Prison-Based Gerrymandering

There are dramatic examples of prison-based gerrymandering in upstate counties and cities. For example, half of a council ward in the city of Rome, New York is incarcerated. As a result, the actual residents of that ward wield twice the influence of other city residents. Recognizing the distortions caused by prison-based gerrymandering at the local level, 13 New York counties with large prisons – including four in plaintiff Senator Little’s district – have historically exercised their discretion to remove the prison populations prior to redistricting.

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