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.

by Aleks Kajstura, September 30, 2015

If you’ve been keeping up on current events in redistricting, chances are you’ve been hearing a lot about the Evenwel v. Abbott case recently. Here’s the rundown from a prison gerrymandering perspective, with our partners at Dēmos:

The U.S. Supreme Court is poised to hear a case in which litigants in Texas are asking the Court to undermine the core constitutional principle of “one person, one vote.” In this case, Evenwel v. Abbott, the plaintiffs are asking the Court to require states, when drawing district lines, to ignore anyone not already eligible or registered to vote. Their case will be argued in the Court’s current term.

Dēmos opposes this misguided effort to treat non-voters as non-persons under the Fourteenth Amendment. To assist the Court in understanding the full ramifications of the case, Dēmos has authored a friend-of-the-court brief addressing an issue that particularly affects incarcerated persons – the issue of “prison gerrymandering.” The problem of prison gerrymandering, where incarcerated people are used to pad out districts that host prisons, is not directly at issue in the Evenwel case, but the plaintiffs in Evenwel have invoked the issue of prison gerrymandering as if it supported their arguments for discounting non-voters. Our “friend of the court” brief explains why they are wrong.

The brief was filed on behalf of four organizations whose members have long fought prison gerrymandering, DARE (Direct Action for Rights and Equality), EPOCA (Ex-Prisoners and Prisoners Organizing for Community Advancement), VOCAL-NY (Voices of Community Activists & Leaders – New York), and VOTE (Voice of the Ex-Offender). Dēmos was joined as counsel on this brief by the Prison Policy Initiative.

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.

Our brief explains why treating incarcerated persons as “residents” of the prison where they are involuntarily detained, instead of their home communities, creates serious inaccuracies and distorts redistricting, whether or not the incarcerated persons are eligible to vote. It further explains how creating a constitutional requirement to exclude non-voting populations from the population base used for redistricting would not end prison gerrymandering, and in fact could make things worse.

by Aleks Kajstura, August 19, 2015

Prison population affecting Florida’s redistricting fight” in yesterday’s Miami Herald explains how the current way the Census Bureau counts incarcerated people is making it difficult for the legislature to draw functional minority opportunity districts:

The last Census counted more than 160,000 people in Florida correctional facilities, and they cannot vote. But they can skew how districts are drawn, and ultimately who represents the state in the U.S. House of Representatives. That is exactly what U.S. Rep. Corrine Brown, D-Jacksonville, is convinced is happening in North Florida.

Brown said the proposed new Congressional District 5 stretching from Jacksonville to Tallahassee will see a reduction in the percentage of black residents who are of voting age — a key measure used to ensure black voters can elect who they want to represent them in Congress — from 50 percent to 45 percent under the map that passed the House on Tuesday and is expected to be before the Senate on Wednesday.

But Brown, who is suing the Legislature to block the redrawing of her district, said the reduction of the black voting age population in her district could be even greater because her new district would have 17,000 prisoners in it — giving it one of the highest prison populations in the state. Her current district has just 10,000.

Florida is redistricting again because the Florida Supreme Court recently invalidated the current map and legislators are having a hard time disentangling Census’s detailed data on voting age and race from the Bureau’s counts of incarcerated populations. And, as the article reports, some of the attempts to increase the Black Voting Age population inadvertently relied on adding even more prisons to the proposed district:

State Sen. Audrey Gibson, D-Jacksonville, proposed a plan that would increase the black voting age population in Brown’s district to 46.6 percent. Gibson cited concerns over the prisons as one of her points of contention, yet her proposal, which is scheduled to be considered by the Senate on Wednesday, would boost the number of people incarcerated in Brown’s district to nearly 23,000.

Sen. Bill Montford, a Tallahassee Democrat, took his own shot at redrawing the district, too. But while his plan increased the black voting age population, it would have required putting almost 30,000 inmates into Brown’s district.

To make these kinds of calculations easier for map drafters, we combine the Bureau’s data on incarcerated people into accessible formats and make those available through our data page. And of course, if the Census Bureau changes their methodology to count incarcerated people where they reside in 2020, these sorts of problems will be avoided.

by Aleks Kajstura, May 12, 2015

Minnesota’s election omnibus reform bill, SF 455, passed the senate yesterday. The bill includes ending prison gerrymandering among other reforms. For more information on the prison gerrymandering provisions (Article 6) of the bill check out my written testimony. The bill now awaits action in the House, stay tuned.

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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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