Ending prison-based gerrymandering in New York was a smart move, he says, but there’s more work to do to address disporportionate incarceration rates and rural prison industries:

Far too many of our young urban men in New York spend often-brief sojourns in rural prisons that stigmatize them for the rest of their lives, exposing them to legal discrimination and relegating them to a lower class existence.

Laws may be colorblind, but the criminal justice system is not, unfortunately. White and black people use illegal drugs at about the same rates, for example, but a much higher percentage of black people than white are arrested, prosecuted and imprisoned for drug crimes. Most of these people are young men, and once convicted, their road to a constructive, satisfying life is particularly steep.

In prison, they are numbers, little more. So many inmates per prison, so many inmates per correction officer, so many inmates per upstate job.

New York should be praised for ending prison-based gerrymandering, but other reforms to improve the criminal justice system must follow:

Prisoners bear responsibility for their actions and the only way for an individual to transcend his incarceration is to first take responsibility for where he has ended up.

But step back and consider all the black and brown young men passing through our state prisons on their way to lives of severely curtailed opportunities. It’s wrong on its face.

They’re being counted where they should be now, but they still don’t count as much as they should.

Current Virgina law allows a county to exclude prison populations for redistricting purposes only if the prison population makes up 12% or more of the county’s total population. HB 13 would allow any county with a single district that’s 12% or more incarcerated to exclude prison populations for redistricting purposes, more than doubling the number of counties eligible to avoid prison-based gerrymandering.

As the Roanoke Times so succinctly put it, HB 13 “would move the commonwealth in the right direction” towards ending prison-based gerrymandering.

The Daily News recently published a letter to the editor by PPI’s Executive Director Peter Wagner that clarifies that the New York law is about fundamental democratic fairness, not petty partisanship. Upstate counties, it turns out, took the lead in rejecting prison-based gerrymandering because of the way it was distorting their districts.

As Peter explains:

Prison law about fairness, not partisanship

The law ending prison-based gerrymandering was far from a partisan power grab. (“Area lawmakers say prison population changes are ‘political power grab,’” story, Jan. 13) The law put the state’s redistricting practices in line with the state constitutional definition of residence and with the redistricting practices of most upstate counties.

The state Constitution says that: “no person shall be deemed to have gained or lost a residence, by reason of his or her presence or absence … while confined in any public prison.” The law corrects the U.S. Census data to comply with the state constitution.

The new law applies to both state and county redistricting, and the law was inspired in part by the 13 upstate counties (including Wyoming) that have traditionally refused to use prison populations when drawing county districts or setting weighted votes in the Boards of Supervisors.

According to my research, the biggest winners under the new law are the residents of neighboring Livingston County. There, more than half of the weighted votes attributed to the town of Groveland — and exercised by the county’s boards chairman — are from claiming prisoners as constituents. It is blatantly unfair for some people to have more political influence just because they live next to a large prison.

Wyoming County got it right years ago, and the new state law requires everyone to use the same fair approach.

Peter Wagner
Easthampton, Mass.

The writer is executive director of the Prison Policy Initiative and author of “Importing Constituents: Prisoners and Political Clout.”

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

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

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

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

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

We have a new video that explains how prison-based gerrymandering can alter district lines. The video uses as its example a district that was drawn in New York after the 2000 Census.

For more videos about prison-based gerrymandering and redistricting, check out our video page.

Today the New York Times editorial board praised a Federal District Court’s decision to uphold the 2010 law that ended prison-based gerrymandering in Maryland. The law had been challenged by plaintiffs in Fletcher v. Lamone.

The editorial states:

Counting Voters Fairly

A Federal District Court late last month wisely upheld a 2010 Maryland law that counts prison inmates as residents in their home communities for purposes of redistricting, rather than at the prisons where they are incarcerated.

The practice of counting inmates as local “residents” — even though they lack the right to vote — has been used to inflate the power of mainly rural areas where prisons tend to placed. It undercuts the power of the urban districts where the inmates actually live and where they generally return when they are released.

There are about 1.5 million people in prison nationally. Prison-based gerrymandering can easily be used to unfairly shift power from one part of a state to another. In Maryland, this gerrymandering distorted the political landscape. In one county commission district, for example, inmates made up 64 percent of the population. In one state legislative district, nearly a fifth of the population were inmates.

The state law was explicitly drafted to advance the interests of minority citizens, who are disproportionately represented among inmates and who stand to lose most when political power is shifted away from their home districts. A small group of voters challenged the law, arguing, in essence, that it was illegal for the state to correct for prisoner-related population distortions.

The court rightly dismissed this argument, adding that the state was within its rights to adjust census data for redistricting purposes. This sound ruling should encourage more states to join Maryland, New York, Delaware and California in adopting similar anti-gerrymandering laws.

Case documents, related materials, and selected news coverage are available on our Fletcher v. Lamone page.

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

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

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

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

Here’s the editorial:

Prisoners shouldn’t pad electoral districts

Let small localities with comparatively big prisons skip the prisoners when redistricting.

Prisoners skew the electoral map in some Virginia communities because they count as residents where they are incarcerated. They may not vote, though, so the rest of the people in a district with a prison receive greater political power than their neighbors.

Del. Riley Ingram, R-Hopewell, has introduced a bill to allow a few more localities to end such local prison-based gerrymandering. If H.B. 13 becomes law, localities would not have to count prisoners when they draw their legislative maps if the prisoners would constitute at least 12 percent of the ideal population of a district.

That would not affect redistricting for state or federal offices, only local offices.

The 12 percent threshold is a vestigial organ from existing law. In 2001, lawmakers gave localities the option to ignore prisoners in redistricting if 12 percent of all residents were prisoners. Ingram’s bill simply shifts the same percentage to a single district.

The nonpartisan Prison Policy Initiative identifies more than a dozen Virginia localities that could stop padding districts with prisoners. None is around these parts, but Pulaski and Pittsylvania counties both have incarceration facilities that could be eligible in 2021, when the next redistricting takes place.

Ingram sponsored a similar bill last year. It passed the House of Delegates on a 99-0 vote, but it died in the Senate Privileges and Elections Committee. Local senators split on the committee vote. Sen. John Edwards, D-Roanoke, supported the bill. Sen. Ralph Smith, R-Roanoke County, opposed it.

It faces better prospects this year. The evenly divided Senate is now under Republican control with the tie-breaking vote of Lt. Gov. Bill Bolling. Moreover, the NAACP has come out in favor of the change, contradicting concerns raised last year that blacks would oppose the measure.

Ideally, the General Assembly would simply allow all localities not to count prisoners in their local districts. After all, whether they are 5 percent or 15 percent of the population in a district, they artificially boost the population count and the political clout of some voters.

Ingram’s bill does not go that far, but it would move the commonwealth in the right direction.

For more information about the bill, check out our recent blog posts Virginia bill would help counties avoid prison-based gerrymandering, and Virginia counties may be given more choices in avoiding prison-based gerrymandering.

New York law requires that redistricting population data count incarcerated people at their home addresses. And although New York’s Legislative Task Force on Redistricting (LATFOR) is required to release the adjusted redistricting data, it has yet to do so. This poses a problem for the state’s residents and organizations that want to propose their own redistricting plans for consideration by the LATFOR.

Two online interactive redistricting tools make some of the required data available: The Public Mapping Project’s District Builder and Common Cause/Newsday collaboration, UMapNY.

District Builder and UMapNY both use population data that account for half of the prison-based gerrymandering problem: while these tools could not count incarcerated people at their home addresses, the prison populations were removed form the population totals of the locations with the prisons to give a more accurate reflection of the state’s population distribution. Both tools use our analysis of the Census Bureau’s Group Quarters data to adjust the population of the 79 Census blocks that contain correctional facilities affected by the law.

These tools allow the residents of NY State to create draft maps with the most accurate redistricting data available so far.

The law currently gives 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.

If the bill passes, the law would be expanded to apply to federal and regional correctional facilities, not just state prisons. It would also let counties such as Southampton County, where a prison accounts for less than 12% of the county’s Census population, but was still forced to draw a district that was more than half incarcerated, the option exclude the prison population when redistricting. It would guarantee that no county would be forced to draw a district where a prison makes up more than 12% of the district’s population.

The amendments will be a welcome change to many of Virginia’s counties. As Pittsylvania County County Administrator Dan Sleeper is quoted stating, “[y]ou want a fair representation of voters in your district.” Even with the amendments, the law would not benefit the residents of Pittsylvania County, because their prison population does not distort their districts enough to meet the statute’s requirements. But the changes would double the number of Virginia counties eligible to avoid prison-based gerrymandering.

Bon Homme County, South Dakota and the City of Fulton, Missouri both have a large prison within their boundaries. They are currently redistricting following the 2010 Census; attempting to draw each district or ward to have equal population in order to give each resident an equal representation in local government.

But this process is undermined by the Census Bureau’s population data, which include prison populations as if they were residents of the town or county. Fulton, for example, relied on census population data when it drew its city council wards a decade ago and ended up with a ward where about half of the “residents” were actually people incarcerated in state correctional facility located in the ward. This meant that actual residents of the ward have had twice as much influence over city affairs as everyone else in the city. This month, the city is extending the disproportionate influence of residents in ward 2 for another ten years, because, as Fulton’s Director of Administration Bill Johnson puts it, they “take the census at face value and draw lines based on what is provided by the census bureau.”

Bon Homme County is facing a similar problem, but is choosing instead to adjust the population data to give county residents equal power regardless of which district they live in. In order to base the districts on actual resident populations, the city needed to adjust the Census figures to exclude the prison population that the Census counted as Bon Homme residents.

In addition to the technical aspects of making the adjustment, local officials are often uncertain of their legal ability to make such changes – Bon Homme actually considered switching to an at-large election system to avoid these questions. As I explained in a letter to the editor, however, such concerns are unwarranted because state laws usually support this surprisingly common practice.

Still, Fulton and Bon Homme are just two of hundreds of local governments faced with Census data that is unsuitable for creating fair and equal districts. Bon Homme’s Auditor Tammy Brunken sums up their situation: “The feds have created this monster.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

As the New York Times editorial board observed:

Many counties with large prisons within their borders have rejected the practice of counting inmates as “residents” when they saw how doing so allowed lightly populated towns near prisons to hijack a disproportionate share of political power while diminishing the power of towns that did not have prisons.

Legislators from upstate districts who challenged the law are well aware of what goes on at the county level. But they were desperate to hold on to a process that apportions political power based not on real constituents but on sleight of hand.

In his ruling, Justice Eugene Devine of the State Supreme Court said the plaintiffs had failed to show that the state law was “anything other than rationally based and constitutionally sound.” The plaintiffs, who are appealing, harm the political process by fighting a law that ensures fairer representation.

All the case documents and selected press coverage are available on our Little v. LATFOR page.