June 30, 2016

UPDATE: Comment deadline extended to September 1.
The Census Bureau has extended the deadline to submit comments to September 1, 2016, explaining: “Because of the scope of the proposed criteria, and in response to individuals and organizations who have requested more time to review the proposed criteria, the Census Bureau has decided to extend the comment period for an additional 31 days.”

Advocates should make their voices heard to demand a more accurate count

Prison Policy Initiative and Demos logos

Today, the U.S. Census Bureau released its proposal on how to implement residence guidelines for the 2020 Census. Ignoring overwhelming public input supporting a change in how incarcerated persons are counted in the Census, the Bureau announced it is leaving in place the inaccurate and outdated practice of counting incarcerated persons as "residents" of the prison location instead of their home communities. Interested stakeholders have until August 1 to submit further comments before this proposal becomes final. In response to this development the Prison Policy Initiative and Demos released the following statement:

Our organizations, and hundreds of allies around the country, are profoundly disappointed by the Census Bureau proposal to again count nearly 2 million people in the wrong place on Census day. Continuing this outdated practice will ensure an inaccurate 2020 Census and another decade of prison gerrymandering.

Counting incarcerated people as if they were “residents” of the correctional facility makes the Census less accurate for everyone: rural and urban communities; incarcerated persons and their families; governmental authorities trying to draw accurate redistricting plans; researchers trying to understand the demographics of local communities.

Peter Wagner, Executive Director of the Prison Policy Initiative, said “The Census Bureau blatantly ignored the overwhelming consensus urging a change in the Census count for incarcerated persons. When the Bureau asked for public comment on its residence rules last year, 96% of the comments regarding residence rules for incarcerated persons urged the Bureau to count incarcerated persons at their home address, which is almost always their legal address. By proposing to once again count incarcerated people as if they were residents of correctional facilities, the Census Bureau has simply disregarded input from the public, redistricting experts, and legislators.”

Demos and the Prison Policy Initiative, along with many other civil rights and criminal justice advocates, have long urged the Bureau to update its rules on incarcerated persons. According to Brenda Wright, Vice President of Policy and Legal Strategies at Demos, “The Bureau’s proposed rules will perpetuate the distortion of democracy that results from padding the population counts of communities with prisons.”

“When state and local officials use the Census Bureau’s prison count data attributing ‘residence’ to the prison,” Wright continued, “they give extra representation to the communities that host the prisons and dilute the representation of everyone else. This is harmful to rural communities that contain large prisons, because it seriously distorts redistricting at the local level of county commissions, city councils, and school boards. It also harms urban communities by not crediting them with the incarcerated population whose legal residence never changed.”

The Census Bureau defines “usual residence” as the place where a person “eats and sleeps most of the time”, but fails to follow that rule when counting incarcerated people. The majority of people incarcerated in Rhode Island, for example, spend less than 100 days in the state’s correctional facilities. If the same people were instead spending 100 days in their summer residence, the Bureau would count them at their regular home address. The Census Bureau continues to carve out an unexplained exception for incarcerated people in order to count them in the wrong place.

The Bureau’s failure to update its rules regarding incarcerated persons is particularly misguided given that the Bureau decided that other populations – deployed overseas military, and juveniles staying in residential treatment centers – should be counted in their home location even if they are sleeping elsewhere on Census Day. It made these changes even though there were far fewer public comments identifying these issues as causing the magnitude of problems that the public commentary on the prison miscount highlighted.

Counting incarcerated people at the location of the facility reduces the accuracy of Census data about communities of color. For example, because African-Americans and Latinos are disproportionately incarcerated, counting incarcerated people in the wrong location is particularly bad for proper representation of African-American and Latino communities. “The Bureau’s counting method means that counties in upstate New York show up as wonderfully diverse in population – solely because there is a large prison in the county,” observed Wright. “It is truly disappointing that the Bureau has proposed to sacrifice the accuracy of the Census in a way that so clearly harms communities of color.”

The Bureau’s failure to update its residence rules is also creating legal problems because federal courts have started to recognize that the Bureau’s prison count can result in constitutional violations of one person, one vote requirements. There have already been successful Equal Protection challenges to prison gerrymandering in federal district courts in Jefferson County Florida and Cranston Rhode Island. The Bureau’s failure to change the way it counts incarcerated populations will ensure that these constitutional challenges continue into the coming decade.

The sole positive outcome in the Bureau’s proposal regarding incarcerated persons is to allow states to request individualized Census counts that reallocate incarcerated populations to their home addresses. This will make it somewhat easier for states to adopt their own legislation to count incarcerated persons in the right location. Four states (California, Delaware, Maryland and New York) have already adopted such reforms, and more should consider doing so now. Wagner pointed out that, “by making this option available, the Bureau is really acknowledging that its own counting rules do not work well for many states – a reality that should have prompted a full overhaul of the current rules on allocating incarcerated population. And people across the country will continue to be at the mercy of an ad hoc approach to equal representation.”

Stakeholders interested in a fair and accurate Census count in 2020 should make sure to submit comments to the Bureau by August 1 to explain why it must revise this proposal and count incarcerated persons at home in the 2020 Census.

May 24, 2016

City of Cranston, Rhode Island ordered to redraw district lines within 30 days

FOR IMMEDIATE RELEASE: Tuesday, May 24, 2016

Steven Brown (ACLU of RI): 401 831-7171

Providence, RI. — In a precedent-setting ruling, U.S. District Judge Ronald Lagueux issued a decision today holding that the City of Cranston violated the one person, one vote requirements of the U.S. Constitution when it allocated the entire incarcerated population of the Adult Correctional Institutions (ACI) as “residents” of one ward of the City when it drew district lines for the City Council and School Committee following the 2010 Census. The ruling allows the City 30 days to present the Court with a new redistricting plan meeting constitutional requirements.

Today’s ruling, just the second of its kind in the nation, concluded that the City artificially inflated the population count of Ward 6, where the ACI is located, by treating all incarcerated persons as “residents” of the prison for redistricting purposes. Doing so, said the court, violates the rights of persons residing in other wards to equal representation as required by the Equal Protection Clause of the Constitution.

“I’m thrilled that our fight for equal representation has been successful,” said Karen Davidson, lead plaintiff. “Fairness in redistricting is a fundamental right and I’m glad that the court has vindicated our claims.”

At issue in the case was the City of Cranston’s choice to count the more than three thousand inmates at the ACI in a single city ward for the purposes of drawing City Council and School Committee districts. Plaintiffs argued this “prison gerrymandering” was improper because those incarcerated at the ACI are not true constituents of local elected officials, but instead remain residents of their pre-incarceration communities for virtually all legal purposes, including voting.

Judge Lagueux agreed with the plaintiffs’ claims, stating that “the ACI’s inmates lack a ‘representational nexus’ with the Cranston City Council and School Committee.” He noted that “Cranston’s elected officials do not campaign or endeavor to represent their ACI constituents,” and pointed out that that the majority of incarcerated persons cannot vote, and those who can are required by law to vote by absentee ballot from their pre-incarceration address.

Due to the questionable counting, persons at the only state-run correctional facility in Rhode Island account for 25% of Ward 6’s total “population.” 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 13,500 constituents in each of the other wards.

Cranston residents Karen Davidson, Debbie Flitman, Eugene Perry, and Sylvia Weber joined the ACLU of Rhode Island as plaintiffs in the case. They were represented in federal court by Demos, the Prison Policy Initiative, the American Civil Liberties Union, and the ACLU of Rhode Island.

“This is a big win for democracy,” said Adam Lioz of Demos, counsel for the plaintiffs. “Prison gerrymandering distorts representation and should no longer be tolerated. This decision should pave the way for other courts to address this long-standing problem.”

“We applaud the court’s decision requiring the City to correct its prison gerrymandering problem without delay,” said Steven Brown, executive director of the ACLU of Rhode Island. “It is time for Cranston to stop holding elections under a one-person, three-quarters of a vote regime.”

“Counting people at the ACI as constituents of Ward 6 officials made no sense,” said Aleks Kajstura of the Prison Policy Initiative. “They can’t use the park or library, attend a City Council meeting, or send their kids to public schools. And, even those who can vote must do so from their actual legal residence, not the prison location.”

“This ruling means that Cranston can no longer play games with our democracy by artificially inflating the political power of one district over another. People who are incarcerated should be counted as residents of the districts where they lived, not as so-called ‘residents’ of where they are involuntarily confined,” said Sean Young, staff attorney with the ACLU’s Voting Rights Project.

ACLU of RI volunteer attorney Lynette Labinger added: “The ACLU first urged the City to redraw its district lines four years ago in order to protect the rights of voters in the City’s five other wards. I am gratified that they should soon have their voices heard in equal measure with those in Ward 6.”

The case is Davidson et. al. v. City of Cranston. Plaintiffs’ complaint can be found here and their motion for summary judgment is here. Judge Lagueux’s ruling is here.

by Aleks Kajstura, May 2, 2016

Hot on the heels of a federal court decision holding prison gerrymandering unconstitutional in a Florida County, Tennessee has passed a law last week clarifying that its counties may also opt out of the practice.

The new law provides:

When a reapportionment is made, residents of a correctional institution who cannot by law register in the county as voters may be excluded from any consideration of representation.

Most states are silent on the question of how local governments handle prison populations at redistricting time, and over 200 local governments that have significant prison populations choose to avoid prison gerrymandering. (And the larger the prison population, the more likely the county is to correct the problem.) But Tennessee was one of only 3 states that required its local governments to use Census data that counted incarcerated people as if they were residents of the town the prison was located in. (The two remaining states are Minnesota and Wisconsin.)

This is an important first step for ending prison gerrymandering in Tennessee, which features some of the most dramatic and growing prison gerrymandering in the country. The problem really took off in 1992, when the state’s Attorney General interpreted the state constitution to require counties to use federal Census data for redistricting, which counted people incarcerated in the county as if they were county residents. And as the state’s prison population more than doubled over the next two decades, and counties continued to dutifully abide by the ever-more-questionable decision, some county residents had their vote diluted by as much as 88%.

Still, the legislature was silent on ending prison gerrymandering until recently, when Representative Weaver, the bill’s sponsor tried to solve the problem for Trousdale County, declaring that “we need this desperately”: a large new prison was slated to open in Trousdale County, where the projected prison population would have accounted for 3 whole districts on its own.

Tennessee’s counties are now unequivocally free to protect their democracy from the Census Bureau’s prison miscount. Now what about the state’s General Assembly districts? Time is running out for the bills to end prison gerrymandering in the state legislative districts in this session, but I hope to see Tennessee soon finish what it started.

by Aleks Kajstura, April 14, 2016

Davidson v. City of Cranston, a case filed in 2014 seeking to end prison gerrymandering in Cranston, Rhode Island, is getting rolling again. After an initial victory for the plaintiffs, the case was put on hold awaiting the Supreme Court’s ruing in Evenwel v. Abbott.

Then just a couple of weeks before the Evenwel decision came down, a federal court struck down a redistricting plan in Jefferson County, Florida, deeming prison gerrymandering unconstitutional.

Now, at the request of the Judge in Davidson, Plaintiffs submitted a memorandum of law, summarizing the courts’ reasoning in Evenwel and Florida condemning prison gerrymandering. The request comes as both sides have pending requests to the court for a summary judgement; stay tuned for updates.

by Aleks Kajstura, March 21, 2016

On Saturday, in a thorough 86 page opinion, Judge Walker of the United States District Court for the Northern District of Florida struck a blow to prison gerrymandering.

I’ll get to the decision in a minute, but first here’s some background. Each decade, state and local legislative districts are redrawn across the country to ensure that each district contains the same population as other districts. In this way, all residents are given the same access to representation and government. However, the Census Bureau’s practice of counting incarcerated people as residents of the prison location, instead of their home communities, results in significant distortions in achieving fair representation. As Judge Walker put it, “blind reliance on census data can lead to unconstitutional results.”

Over 200 local governments across the US avoid prison gerrymandering by refusing to use Census Bureau data that counts out-of-town people incarcerated there as if they were town residents. But Jefferson County in Florida bucked the trend, preferring to give the residents of District 3 the advantage of sharing their representatives with the disenfranchised people incarcerated in the state’s Jefferson Correctional Institution (JCI).

While all residents of all the other county board districts were harmed by artificially inflating the population of district 3, the prison gerrymandering resulted in particularly harsh impact on the African-American community in the County. The ACLU of Florida and the Florida Justice Institute brought the suit to correct these inequalities.

The judge struck down the prison-gerrymandered redistricting plan and has ordered the county to redistrict based on population data that doesn’t count the people in the state prison as if they were all residents of District 3 (of the 1,157 people incarcerated at JCI, about 9 are Jefferson residents at all). The new plan could allow for a Black influence district in addition to the current Black majority district.

The opinion concludes, summarizing:

Defendants argue vigorously that excluding the JCI inmates from the population base for districting purposes would be “arbitrary.” The opposite is true—including them in the population base is arbitrary. The inmates at JCI, unlike aliens, children, etc. living in Jefferson County, are not meaningfully affected by the decisions of the Boards. To say they are “constituents” of the Board representatives from District 3 is to diminish the term constituent. To treat the inmates the same as actual constituents makes no sense under any theory of one person, one vote, and indeed under any theory of representative democracy. Furthermore, such treatment greatly dilutes the voting and representational strength of denizens in other districts. Jefferson County’s districting scheme for its Board of County Commissioners and School Board therefore violates the Equal Protection Clause. [Citations omitted.]

The opinion is eminently readable; it includes a systematic overview of redistricting case law, including a reminder that none of us technically have a “right to vote”, to a thorough analysis of prisoner-community relations (or lack there of). I promise the 86 pages fly by, you can read it for yourself.

Opinion, Calvin v. Jefferson (March 19, 2016 ). Congratulations to the ACLU and Florida Justice Institute!


And lastly, for anyone wondering about Judge Walker’s approach in relation to Evenwel, he “expresses no opinion” on the relative importance of electoral versus representational equality because prison gerrymandering serves neither goal.

by Aleks Kajstura, February 26, 2016

Bills to end prison gerrymandering have been introduced in Rhode Island (H 7400, introduced by Representatives Williams, Regunberg, Ajello, Costa, and Lombardi, and S 2310, introduced by Senators Metts, Crowley, Jabour, Pichardo, and Doyle). Similar bills have passed the State’s Senate twice before, maybe this will be the year that the issue of equal representation will earn the House’s support as well.

And growing media attention to the issue in Connecticut — following a February 10 press conference sponsored by a growing coalition of activists — is adding urgency to the legislative agenda in the state, which is poised to follow their neighbor soon.

Matt O’Brien and Susan Haigh of the Associated Press report on the legislative efforts in both states – it’s quick and well worth a read.

by Aleks Kajstura, February 24, 2016

news thumbnail As we pass the middle of the decade and the Census Bureau is getting ready for the 2020 Census, Rome NY has finally completed their 2010 redistricting, and with it, ended decades of prison gerrymandering. The new lines for the City Council wards went into effect in time for the fall elections, and the elected councilors just started their new terms of office last month.

The city might sound familiar (and not just because it shares a name with Italy’s capital) – Rome’s City Council wards were one of New York State’s worst examples of prison gerrymandering. About half of the population that the Census counted in Ward 2 was actually mostly out-of-town people incarcerated in the prisons located there. This stark population inequality in Rome’s wards illustrated the absurdity of pretending that 1=2 when it came to allotting representation.

Prison gerrymandering is often pigeonholed as an urban issue, resulting in a lack of interest or opposition from legislators representing rural areas. Rome served as an example to bridge that gap; in fact, six years ago this week, the Utica Observer called on the state to end prison gerrymandering, citing Rome among the prison gerrymandering examples in their area. In endorsing New York’s law to count incarcerated people as constituents in their home districts, the Utica Observer concluded simply: “It’s only fair.” Once the law passed, even the New York Times took note of Rome’s situation.

Now, five years after the State passed a law ending prison gerrymandering, the City, leaning on Oneida County for technical help, finally redrew their City Council wards using redistricting data prepared by the state (LATFOR). The LATFOR data, which adjusted the population data that the state received from the Census Bureau, counts incarcerated people at home.

For Rome, this means that the redistricting data now reflects the city’s actual population. The Census Bureau had counted people incarcerated at the Mohawk and Oneida facilities as if they were actual residents of the city. This incarcerated population accounted for half of the people in the city’s Ward 2. A year later, the State closed the Oneida facility, spreading its occupants across the state’s other prisons, meaning the Census data was stretched even further from reality. The LATFOR data helped the city avoid these “phantom constituents” skewing their redistricting data, ensuring that all city Councilors now have an equal number of constituents in their district.

While cities like Rome — and their residents — benefit from state laws that adjust the Census Bureau’s flawed data, not everyone is so lucky. The Census Bureau should count incarcerated people at home in the first place, rather than leaving the data clean-up to states, let alone individual cities and counties.

Rome City Councilor, Frank Anderson (5th Ward), explains the city’s protracted redistricting saga:

by Peter Wagner, December 30, 2015

Last month, Jacqueline Berrien passed away at the age of 53. The NAACP LDF has an excellent essay about her life and work with lots of links to other remembrances of this important civil rights leader, but I wanted to add one more.

Before Jackie was Chair of the United States Equal Employment Opportunity Commission, she was a litigator for the NAACP Legal Defense and Education Fund. While there, she took a 3-year break from the LDF to work as a Program Officer for the Ford Foundation where she helped launch the movement against prison gerrymandering.

In late 2002 and early 2003, when the term “prison gerrymandering” did not yet exist and most politically savvy people had not even considered the implications of how the Census Bureau counted incarcerated people, Jackie was paying very close attention.

In October 2002, Jackie was moderating a plenary session at a large conference in Washington D.C. about felony disenfranchisement. When a panelist did not know how to respond to an audience member asking a question about the political effects of the Census Bureau’s prison counts, Jackie interjected to say that she understood that there was a new report about this problem and that its author, Peter Wagner, had signed into the conference. She invited me to stand up and introduce myself to the attendees. Many of the connections made at that conference formed the core of our work for many years to come.

In April of 2003, I was presenting my research at the Critical Resistance Conference in New Orleans, and Jackie attended my session. Even though Jackie needed to miss the bulk of my presentation, she asked the first question, a question that framed the essential strategy question for our movement:

How could an urban-dominated movement have any chance of success at getting incarcerated people counted at home if the political party that is associated with rural America currently controls all three branches of government? The answer, of course, and the foundation for the important group discussion that followed was that it shouldn’t be an urban dominated movement.

In fact, as my research showed, rural people had already been hard at work for years trying to address the problem of prison gerrymandering. Telling the stories of places like Essex County New York, and Anamosa Iowa soon became the key link in our rural and urban coalition that has won so many victories.

That June, Jackie funded a Brennan Center for Justice-organized convening of criminal justice advocates, civil rights leaders, and redistricting experts to hear the preliminary research results that Eric Lotke and I were having in our respective Soros Justice Fellowships on this topic and to decide on a collective course of action. This meeting set in motion all of the work and victories that followed.

Thank you, Jackie.

by Peter Wagner, December 30, 2015

2015 saw the passing of Bertha Finn, one of the unsung heros of the movement to end prison gerrymandering. Bertha Finn, who was a retired journalist and county clerk as well as an accomplished amateur historian, was instrumental in organizing a 2007 referendum to change the form of government in Anamosa Iowa to end the practice that we later came to call “prison gerrymandering”.

Anamosa Iowa became the symbol for the national campaign to end prison gerrymandering because the impact there was so extreme. A large prison made up just about an entire city council district. One of the few actual residents of the district was shocked to come home one day and find he’d been elected to city council by two write-in votes; one cast by his wife and the other by a neighbor.

Most people reading this blog will be familiar with Anamosa, but not Bertha’s name. She’s mentioned in only one national article, and she declined to be photographed when the Public Welfare Foundation was writing an article about Anamosa and declined to be interviewed for the prison gerrymandering segment of the Gerrymandering documentary. I don’t think she liked press attention, but on both of my trips to Anamosa she generously hosted me for conversation at her home.

In particular, Bertha filled in so many of the gaps in my knowledge about how long Anamosa residents had been aware of the problem and the efforts taken to fix it. (Most communities faced with drawing a district that would have a larger incarcerated population than resident population according to Census data would do the obvious thing and adjust the data to reflect the actual resident population. But Iowa is one of about three states where state law requires municipalities to use the Census for redistricting with no adjustments.) Eventually, Anamosa found a creative solution: it could change the form of government so that each elected official would represent the entire city.

A few years later, the city of Clarinda Iowa followed Anamosa’s lead and also abolished its wards as a way to address prison gerrymandering. My conversations with Bertha inspired a lot of my thinking about whether districts always make sense in small communities. Traditionally, districts are seen as the best way to protect the interests of minority communities, but sometimes, in very small communities, districts can unnecessarily divide up political influence. For example, Bertha correctly believed that moving to an at-large system would increase the odds that women would be elected to the city council because supportive women in other districts would be able to vote for the candidate. (For more on Anamosa, Clarinda and similar cities moving to at-large systems and some ideas on other alternative voting systems that could be helpful, see Three cities say goodbye to both wards and phantom constituents. Sadly, Bertha passed before I could share that article with her.)

While I wrote about Anamosa a lot, there was much I didn’t know and Bertha was generous with her time and memories. I learned of her February passing this Spring while were we preparing to post online a collection of clippings she had sent us years earlier from the Anamosa Gazette about the history of advocacy against prison gerrymandering in the city:

Thank you Bertha, for teaching Anamosa and the country to think outside the box when fighting for equal representation.

by Aleks Kajstura, October 15, 2015

A recent New York Times column suggests that our work with the ACLU against prison gerrymandering in Rhode Island and Florida is somehow at odds with the goal of representational equality for communities with non-citizen populations in Texas – a goal that we also share with the ACLU. But, this apparent contradiction disappears when you look more carefully at our organizations’ arguments in each case.

As we wrote last week:

Currently, the Census Bureau counts incarcerated people as if they lived at the location of the prison instead of their home addresses. This can indeed result in representational inequality when states and localities use the data for redistricting. But the ultimate goal of reforming prison gerrymandering is not to eliminate incarcerated persons entirely from the population count. Rather, the four organizations that Dēmos is representing as amici curiae want to ensure that incarcerated persons are tabulated at the correct location, as constituents of their own legislators.

Despite this, the New York Times column asserts that our lawsuits in Rhode Island and Florida seek total exclusion of all incarcerated persons from population counts used for redistricting:

[T]he Florida and Rhode Island suits, brought on behalf of voters who said prisons in nearby districts were diluting the value of their votes, did not ask that the prisoners be counted elsewhere, only that they not be counted locally.

This is not correct because the Times is conflating two distinct problems caused by the Census Bureau, and ignoring the remedies that different levels of government are able to provide with respect to incarcerated persons.

As we explained in our amicus brief:

In counting incarcerated people at the location of the prison, the Census Bureau makes two distinct errors that affect redistricting: 1) it fails to count incarcerated people where they reside, and 2) it counts incarcerated people at the location of the facility. A city or county has the power only to correct the second part of the Bureau’s miscount – assigning people to the wrong location – and not the first part – failing to assign them to the correct location. … This data limitation with respect to incarcerated persons in no way suggests that non-voters should be disregarded in redistricting, when such persons have close ties to the community where they are actually counted and cannot even theoretically be counted at some other location by the Census Bureau.

The Evenwel plaintiffs seek to entirely exclude all non-citizens from redistricting counts, regardless of their residence in, and strong ties to, the community in which they are counted. By contrast, the plaintiffs in the Cranston case have made a careful, fact-based determination of where people incarcerated at the facility actually reside, be it in Ward 6, elsewhere in Cranston or outside of the city and want the city’s districts to treat those groups separately.

Simply put, Cranston does not have the authority to fix prison gerrymandering problems outside its jurisdictional boundaries, and so plaintiffs have not sought to force them to do so.

We devote 7 pages of our brief to an explanation of how and why people remain residents of their home address, even when incarcerated. And we contrast that with non-citizens:

[U]nlike incarcerated persons who are counted in the prison location, non-U.S. citizens are counted in communities where they have strong actual ties to other members of the community. Indeed, they often reside and are counted in households that include family members who are U.S. citizens. Unlike incarcerated persons, noncitizens and other non-voters are able to participate in the economic and civic life of the community where they are counted – they shop at grocery and clothing stores, gas stations and other establishments; attend religious services and support religious establishments; work and pay taxes in the community; and engage in civic and volunteer activities. None of these avenues for community engagement are available to the incarcerated persons who are counted as residents of the prison where they are housed.

These differences are why our brief says that the Evenwel plaintiffs are drawing a “false parallel” to prison gerrymandering.

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  • September 21, 2016:
    Executive Director Peter Wagner will be speaking at Claremont McKenna College in California. Details TBA.

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