American democracy relies on Census counts to apportion political power on the basis of equal population. By Minnesota law, prisoners can’t vote and remain residents of their home communities. “By relying on Census Bureau counts of prison populations to pad legislative districts with prisons, Minnesota is inflating the votes of residents who live near prisons at the expense of every other resident,” said report author Aleks Kajstura.

“Every decade we redraw our districts. The state uses Census data to redraw its own districts. Using prisons to pad the populations of a small number of districts dilutes the votes of everyone else,” said State Senator Linda Higgins – DFL-Minneapolis. Senator Higgins and Representative Champion are developing legislation to change the way Minnesota uses census data in redistricting.

Even though Minnesota has one of the lowest incarceration rates in the nation, the way that incarcerated people are counted undermines Minnesota’s efforts to ensure equality and fairness in districting. Sarah Walker, a founder of the Minnesota Second Chance Coalition and chief operating officer of 180 Degrees Inc. in Minneapolis, is concerned that “even in Minnesota there are enough people in prison to skew our democracy. When someone goes to prison, everyone in their community has their vote diluted.”

The report finds 10 House districts where state and federal prison populations were counted as residents, significantly enhancing the weight of a vote cast in those districts. “For people to have confidence in our system of representative democracy, every aspect of it must be founded on basic principles of fairness,” says Mark Haase, Director of Public Policy and Advocacy at Council on Crime and Justice. He continued: “Counting prisoners where they have no ability to participate in the community or vote is not fair to them and all Minnesotans.”

“The Minnesota Constitution provides that incarceration does not change a person’s residence,” says Keesha Gaskins, Executive Director of the League of Women Voters Minnesota. She explains that “it is inconsistent with our Constitution and basic democratic principles of our republic to continue a practice that inflates the political influence of people within a legislative district with a correctional facility and dilutes the influence of the surrounding communities and the home districts of the incarcerated persons. The Census Bureau’s distribution of the important data of where incarcerated persons reside allows us to correct this injustice and to ensure that the redistricting process is fair and equitable to all Minnesotans.”

The report further calls on Minnesota to lobby the Census Bureau to change how prisoners are counted in the future and to develop state solutions to protect the restricting process after the 2010 Census.

The report, “Importing Constituents: Prisoners and Political Clout in Minnesota,” is available at http://www.prisonersofthecensus.org/mn/report.html and other background material including fact sheets, bill links, data tables at http://www.prisonersofthecensus.org/mn/.

Actually, the Census Bureau has no authority over districting. The Census Bureau does provide data that states can use in their individual redistricting processes. States use this data because it is easily accessible and often the only or best data available. States were never required to use this data. (Next week I will blog about a court case that expressly prohibited using Census data where using the data would have lead to unequal districts.)

The Census Bureau recently announced that it will publish group quarters population data in May 2011 (prisons are one kind of group quarters). If they wish, the states can adjust their populations, taking into consideration the location and population of prisons, when redistricting. The Bureau is simply making an existing process easier. A few states have already required their counties to make this exact adjustment in their populations when redistricting, and many more counties made such adjustments on their own.

The Census Bureau was simply responding to a need that was already there. The Census Bureau has no “new policy” regarding populations used for redistricting; that choice is, and always has been, reserved by each state and local goverment.

We’ve also released two fact sheets:

• Ending prison-based gerrymandering would aid the African-American vote in Maryland [PDF] by Prison Policy Initiative
• States are Authorized to Adjust Census Data to End Prison-Based Gerrymandering, and Many Already Do [PDF] by Prison Policy Initiative and Demos

and created a new page for the Maryland campaign.

The editorial concluded with the pessimistic prediction that a lawsuit would be necessary to end prison-based gerrymandering, and today’s article takes on the legal and political arguments that are holding up reform.

The whole article is worth reading, but the end is excellent:

Wagner admits some enthusiasm over the bill is partisan. But he says the issue shouldn’t be; [Republican Senator John J.] Bonacic and upstate senators of non-prison districts should want change, too. “John Bonacic may have about 2 percent prisoners in his district, but Betty Little (R-Queensbury) has 5 percent,” Wagner says.

Politics aside, Bonacic believes state prisoners should be counted differently. He’d like prisoners to declare what community they’re from. He also thinks those serving life or long-term sentences should be counted where they’re jailed.

And he’d like the conversation to include other transient groups, such as college students and second homeowners. “If you want to resolve the residence issue, do it for everybody,” Bonacic says.

Wagner says Bonacic’s ideas have merit. He also admits that legislative-based gerrymandering — which Bonacic says he’s challenged for years — is a larger sore spot. Still, Wagner says the prison bill would make things more honest.

Prisoners may be pawns in the current system, but Wagner says their neighbors are the bigger victims.

“My neighbor hits me over the head and robs me, he goes to a jail in another district,” Wagner says. “Now, you’re going to dilute my vote by counting him in another district, too?”

Read the editorial: Our view: Don’t count prisoners with voters. Redraw districts following 2010 Census to reflect true constituency published on Feb 26, 2010.

Or their previous coverage:

• 1/2 of Rome ward’s residents are prisoners
  Group says inmates should be excluded when drawing district boundaries, by Jennifer Fusco Feb 18, 2010
• State prisoners could become unlikely political prize Jan 28, 2010
• Our view: Don’t count prisoners as constituents, editorial, January 6, 2010
• Should prisoners count when drawing legislative districts? by Jennifer Fusco, Jan 2, 2010.

She quotes Prison Policy Initiative Legal Director Aleks Kajstura on why we are working in Minnesota on this issue with the Second Chance Coalition:

“We’re focusing on Minnesota for three reasons…. First, the Minnesota Constitution says that incarceration does not change a residence. Second, Minnesota has such a strong dedication to the principle of drawing equal districts, that only three other states have House districts that are more equal in population. Third, even though Minnesota has fewer people in prison than most states, there are still enough people being counted in the wrong place to violate the principles of democracy.”

Also quoted is Sarah Walker, a founder of the Second Chance Coalition, who explains why the Coalition is taking up the issue:

“There are so many people in prison today that it’s breaking our electoral system, punishing even people who have no involvement with the criminal justice system”

Keesha Gaskins, executive director of the League of Women Voters explains her rational as well:

“This is a democratic issue, with a small ‘d,’ ” she said. “This isn’t a huge partisan issue. It’s about what’s fair for citizens and what’s fair for prisoners.”

The article says that State Sen. Linda Higgins is working on a bill that would fix prison-based gerrymandering in the state.

Thank you, Chairman Towns and Chairman Clay, for inviting me here today. I am Executive Director of the Prison Policy Initiative, a non-profit, non-partisan research organization-based in Massachusetts. For the last decade, we have studied how the U.S. Census counts people in prison and worked to quantify the policy and legal implications flowing from those technical decisions.

Fairly and accurately counting the prison population matters. On Census day, there will be more than 2.3 million people behind bars in this country. That is a population larger than the 4th largest city in this county, larger than 15 individual states, and larger than the combined populations of our 3 smallest states. As this population disproportionately consists of African-American and Latino men, critical civil rights issues are at stake in a fair and accurate count of this population.

In this testimony I would like to explain some of the distortions in representation that result from the Census Bureau’s current practices regarding how incarcerated populations are counted, and the long-term changes that are needed to fully address the problem. At the same time, I would like to commend the Census Bureau for recently agreeing to an initial step that will provide more timely data to state and local governments that wish to make their own adjustments for a fairer and more accurate count.

The Census Bureau counts people in prison as residents of the correctional facility. The procedure is that the Bureau contacts correctional facilities prior to the Census, explains what is required and works out the method and timing of the count with the warden or the state Departments of Correction. The Bureau strives to use individual enumeration via census forms wherever possible, and as a last resort uses administrative records to capture the age, sex, race and ethnicity of the population.[1]

This is, to a large extent, the method and procedures that the Census Bureau has used since the first Census in 1790. And while it is the procedure that will be used in the 2010 Census, there is a growing concern in state and local governments that changes will be required for the Census in the future.

Specifically, the Census Bureau’s 200-year-old decision to count incarcerated people as residents of the census block that contains the prison creates problems for redistricting at the state and local level. Most states have constitutional clauses or election law statutes which declare that incarceration does not change a residence.[2] The fact that incarcerated people tend to be incarcerated in large facilities far from their homes means that a large population is being counted in the wrong place.

When used for redistricting, these prison counts can have a significant effect. One state legislative district in Maryland is 18% prisoners; a state legislative district in Texas is 12% prisoners; and 15% of one Montana district is incarcerated people imported from other parts of the state. Forty-eight states bar people in prison from voting, and state residence laws make it clear that even if people in prison could vote, they would need to do so back at home via absentee ballot.

As a result, when states rely on Census Bureau prison counts to draw districts, they inflate the weight of a vote in the prison district at the expense of every person in every district that does not contain a large prison. Indeed, the Census Bureau’s own advisors at the National Research Council wrote in their 2006 report, Once, Only Once, and in the Right Place: Residence Rules in the Decennial Census, “The evidence of political inequities in redistricting that can arise due to the counting of prisoners at the prison location is compelling.”[3]

This problem is even more significant in rural counties and cities that contain prisons. Their legislative districts, county board districts and city council districts are smaller, so a single prison can have a massive effect. The most well known example is in Anamosa, Iowa, where the state’s largest prison is located and where it constituted 96% of the city’s second ward. In 2005, there were no candidates for election, and the winner won with two write in votes, one cast by his wife and another by a neighbor. Citizen outcry about granting some residents 25 times as much political influence over the future of the city just because they live next to the prison led to changing the form of government in the city to eliminate the districts. I understand that one of the first persons to sign the petition for change was the representative of the prison district.

Anamosa is an extreme example, but far from unique. Waupun, Wisconsin has a city council district that is 79% incarcerated persons. Lake County Tennessee has a county board district that is 88% incarcerated persons. And the city of Rome, New York has a city council district where half of the population is not residents of the city, but people incarcerated in state prison facilities.

The Prison Policy Initiative, along with our allies, have discovered that many dozens of counties and local governments are concerned about distortions in representation caused by treating prison populations as residents of the prison community. Indeed, when the issue of using prison populations to change electoral representation in local government is brought to the public’s attention, there is a huge outcry, and with one exception in the entire nation, the government immediately reverses course and decides to revise the census counts and base districts on the actual population of the community.

More than 100 rural counties and municipalities currently ignore the prison populations when drawing districts or designing weighted voting systems.[4] Some do so on their own, and others do so with the support of state government. In Mississippi, the attorney general directs counties to remove prison populations. In Colorado, state law requires counties to ignore the prison populations. Virginia law encourages counties with large prison populations to ignore the prison populations, and New Jersey law requires school districts to be drawn without regard to prison populations.

However, on a technical level, this process of revising the Census data to remove prison populations has been difficult and error-prone for the simple reason that the Census Bureau’s prison count data was traditionally published too late to be used in redistricting. Although it sounds surprising, it is extremely difficult to separate prison populations from resident populations in the PL94-171 redistricting data without the assistance of the Bureau. Counties were forced to use creative ad-hoc methods of identifying the prison populations for the purposes of drawing fair districts, and due to their larger size, states were unable to even consider taking such steps.

That will be very different in 2010. For the first time, the Census Bureau will be providing assistance to state and local governments in making adjustments to the prison counts. In May 2011, less than 2 months after the redistricting data is published, and before most states and counties have completed redistricting, the Census Bureau will publish the group quarters counts, including correctional facilities, for each Census block in the nation.

This group quarters file will be the same file as will later appear in Summary File 1 as Table P41:

Universe: Group Quarters (GQ), Population by GQ Type
Total:
	Institutionalized population for four categories of GQ
		Correctional Facilities for Adults
		Juvenile facilities;
		Nursing/Skilled nursing facilities;
	Other institutional facilities;
		Noninstitutionalized population for three categories of GQ
		College/University student housing;
		Military Quarters;
		Other noninstitutional facilities

This change sounds small, but the implications for data users are large. Many data users in state and local government — especially local government — have long desired a way to identify prison populations in the redistricting data. The Census Bureau has, in consultation with Chairman Clay and voting rights advocates, found a way to empower data users with the data they need to correct distortions in representation that result from counting prison populations as residents of the prison community when drawing voting districts.

One question that frequently comes up is whether a change in current practices on how incarcerated persons are counted would affect how federal funding is distributed. While decisions about where to count prison populations are important from the standpoint of fair representation, this issue actually has little impact on distribution of federal funding to communities. Most federal funding based on Census data consists of block grants to states, meaning that the federal government gives money to states based on their total population. Once the states receive the federal money, they are free to distribute it as they see fit within their own borders. For state block grant purposes, in other words, it does not matter where within any given state an incarcerated person is counted.[5] Policy in this area should be based on issues of fair political representation and not on concerns about funding distribution.

Finally, despite some press reports to the contrary, the changes recently announced by the Census Bureau do not mean that the Bureau will be counting incarcerated people at home in 2010. Rather, by agreeing to publish one data table early in order to make incarcerated people easier to see in the data, the Bureau has given governments — particularly rural county governments — a choice they did not have before. I commend Director Groves and Chairman Clay for developing this important interim solution to give data users the choices they need to draw fair districts based on accurate data.

Footnotes