by Alison Walsh, July 21, 2016

For over 14 years, our work has focused on ending the distortion of democracy caused by the Census Bureau’s decision to count incarcerated people as “residents” of correctional facilities. But when we wrote our comment to the Census Bureau in response to the 2015 federal register notice on Residence Rule and Residence Situations, we began by citing another expert on the subject. Former Census Bureau director Kenneth Prewitt summarized the problem over a decade ago: “Current census residency rules ignore the reality of prison life.”

Director Prewitt’s statement reflected the changing realities of incarceration across America. As we explain, “the usual residence rule is outdated and produces inaccurate data because of two relatively recent changes: the prison boom and the apportionment revolution that requires decennial redistricting at all levels of government on the basis of population.”

A bit of background on the prison boom:

The prison boom began in the 1970s, but its impact on the 1980 Census was, from a national viewpoint, modest. In fact, the Bureau didn’t even see it as necessary to mention incarcerated household members on the census form until the 1990 Census. But by 2000, the incarceration rate was more than four times higher than just two decades earlier. So the Bureau’s data did not result in a significant harm to our democracy until after the 2000 and 2010 Censuses.

At the last Census, the Bureau counted over 2 million incarcerated people in the wrong place.

The sheer size of the incarcerated population is not the only factor that undermines the accuracy of current Census data. Two other factors make the prison miscount even worse.

First, while the popular perception may be that most people in prisons and jails are serving long sentences, the opposite is actually true. The typical state prison sentence is only two or three years, and the incarcerated people are frequently shuffled between facilities at the discretion of administrators. For example, statistics in New York State show that the median time an incarcerated person has been at his or her current facility is just over 7 months. […]

Further, a stark and significant racial disparity in who goes to prison compounds the impact of a growing prison population. Our analysis of 2010 Census data shows that Blacks are incarcerated at 5 times the rate of non-Hispanic Whites, and Latinos are incarcerated at a rate almost two times higher than non-Hispanic Whites.

Our letter to the Census Bureau uses data from our 2015 report, The Racial Geography of Mass Incarceration. While many studies have discussed racial disparities within the prison population, this data reveals that stark racial and ethnic disparities exist between the prison population and the people directly outside the prison walls.

[W]e reviewed the magnitude of the gulf between the incarcerated population and the surrounding counties; finding 161 counties where incarcerated Blacks outnumber free Blacks, and 20 counties where incarcerated Latinos outnumber free Latinos. In many counties, the disparity is particularly stark.

Counting incarcerated people as residents of prison locations creates misleading demographic data and gives these counties a false appearance of diversity.

Virtually all — 98% — of New York state’s prison cells were located in state senate districts that were disproportionately White, diluting the votes of African-American and Latino voters. Similarly, in Connecticut, 75% of the state’s prison cells were in state house districts that were disproportionately White.

Modern redistricting rules also require more precise population data.

The early Censuses were primarily concerned with the relative population of each state for the purposes of apportionment. In the 1960s, however, the Supreme Court’s “one person one vote” cases, which require regular population-based redistricting at the state and local level, changed that. And the Census Bureau quickly became the data source for redistricting because it had the ability to provide accurate data down to the block level.

But it is precisely this need — accurate block level data — that is most dramatically undermined by the Bureau’s current interpretation of the usual residence rule. The Census is using a method that tabulates 1% of our entire adult population — and 6.4% of our Black adult male population — in the wrong location.”

Local governments, and even entire states, have taken it upon themselves to find solutions to the problem of prison gerrymandering within their borders. But a national solution depends on the Census Bureau.

Many of the most dramatic instances of prison gerrymandering are concentrated in just a handful of states like Minnesota, Tennessee, and Wisconsin, where state constitutions or state law appear to prohibit the cities and counties from adjusting the Bureau’s data when drawing their districts without regard to the absurd and undemocratic results. For example, the Minnesota statutes declare “When used in reference to population, ‘population’ and ‘inhabitants’ mean that shown by the last preceding federal decennial census. […]

To address all of these problems experienced by redistricting data users in state and local governments, the only viable solution is for the Census Bureau to update its interpretation of the residence rule for incarcerated people and count this growing part of our population in the right place – at home.

Despite the evidence we — and 154 other organizations and individuals — presented, the Census Bureau proposes to continue counting incarcerated people where they happen to be on Census day. To voice your opposition to this policy, submit your comment to the Census Bureau by August 1.

by Dan Kopf, July 20, 2016

In July 2015, University of Texas at Austin graduate student Rachel Gandy submitted a comment letter to the U.S. Census Bureau to express her frustration with the Bureau’s policy of counting incarcerated people as residents of their prison facility, rather than as residents of their hometown.

Gandy explains that not only does this practice defy “common sense”, it also disregards Texas law. She point to this statement in the Texas Election Code:

In this code, ‘residence’ means domicile, that is, one’s home and fixed place of habitation to which one intends to return after any temporary absence… A person who is an inmate in a penal institution… does not, while an inmate, acquire residence at the place where the institution is located.

Because the Census’ practice of including incarcerated people as residents of their prison runs counter to the Election Code, many Texan leaders must spend time fixing these counts, to avoid distorting democracy within their county or school board.

Gandy writes:

The Census Bureau’s Residence Rule ignores Texas law, so community leaders have had to take this problem into their own hands. In an investigation of jurisdictions with large prison populations, researchers found that almost all (86%) Texas communities rejected prison gerrymandering by excluding prisoners from population counts, even if the vote dilution impacts of including prisoners were miniscule. In some parts of the state, the effects of using uncorrected Census Bureau data would have been far from innocuous.

Though many community leaders have been able to obtain the correct counts on the local level, at the state level Texas still relies on Census data for districting. Since African Americans and Latinos are overrepresented in Texas’s prisons, and these facilities are often located in rural white areas, this has the important impact of diluting the political power of African-American and Latino communities.

Gandy is not alone in finding this policy untolerable. Many other organizations and individuals have called out the Census Bureau for choosing to count incarcerated people in a manner that harms communities and is in violation of the “one person, one vote” principle. Nonetheless, the Census Bureau proposes to continue to count incarcerated people in a way that conflicts with the Texas Election Code, conflicts with the need of African-American and Latino communities for fair representation, and conflicts with the common sense desire of the rural Texas communities that host prisons. All of these factors, Gandy writes, call for a change in how the Census Bureau counts incarcerated people.

by Jyoti Jasrasaria, July 19, 2016

Four members of the Massachusetts Legislature submitted a comment in response to the Census Bureau’s federal register notice about the Residence Rule and Residence Situations (Rule), 80 FR 28950 (May 20, 2015).

The group includes four authorities on the subject of redistricting: Stanley C. Rosenberg (Senate President and Co-Chair of the Special Joint Committee on Redistricting from 2010 – 2012), Benjamin B. Downing (Chair of the Senate Committee on Redistricting), Edward F. Coppinger (Chair of the House Committee on Redistricting), and Michael J. Moran (Division Chair of the House of Representatives Leadership and Co-Chair of the Special Joint Committee on Redistricting from 2010 – 2012).

In their comment, these four leaders urge the Census Bureau to count imprisoned people at their residential address rather than at the address of the correctional facility where they are temporarily incarcerated. The comment also includes a 2014 bicameral resolution to the same effect: “Urging the Census Bureau to Provide Redistricting Data that Counts Prisoners in a Manner Consistent with the Principles of ‘One Person, One Vote.’” The legislature adopted the resolution based on testimony and advice it received that prisons are often geographically and demographically distinct from the prisoners’ home communities. Due to this discrepancy, the authors contend that Census data distorts the one-person, one-vote principle:

By counting prisoners at their place of incarceration, rather than the legal address of the person prior to incarceration, the relative strength of votes by residents in that district [where a prison is located] are inflated at the expense of voters in all other districts in the Commonwealth.

The authors point out that the Census’s counting of incarcerated people at their “usual place of residence” instead of their “legal residence” has required individual states and localities to create their own methodologies to correct for problems of political representation. Thus far, California, Delaware, Maryland, and New York have adjusted the Census population totals to count incarcerated people at their home addresses. However, Maryland and New York have faced legal challenges to their adjustments, which the authors note as potential threats to other states unilaterally changing U.S. Census numbers.

Furthermore, Massachusetts is bound by its state constitution to base its legislative districts on the federal Census. Without action on the part of the Census Bureau to change its residence rule for incarcerated people, Massachusetts cannot change its own procedures. Therefore, as the groups’ comment asserts, “[t]he most expedient and streamlined avenue for changing the method for counting prison populations lies with the Census Bureau,” and an updated Rule would provide a uniform approach for all 50 states that would both “rectify the perceived inequalities in counting prisoners and eliminate costly litigation for states to defend redistricting plans based on adjusting local prison populations.”

Although, as Massachusetts’s resolution mentions, the Census Bureau has recognized the demand for more accurate prison population data, the Bureau has proposed to maintain counting incarcerated individuals at their prison facility addresses and disregard the comments from these redistricting experts.

Jyoti Jasrasaria, a 2L at Harvard Law School, is a 2016 summer legal intern at the NAACP Legal Defense & Educational Fund, Inc.

by Alison Walsh, July 18, 2016

The Census Bureau’s proposal to continue counting incarcerated people as “residents” of prison locations, rather than at their home addresses, has drawn widespread opposition.

We can now add the Editorial Board of The New York Times to the list of those voicing dissent.

In “The Wrong Way to Count Prisoners,” the Editorial Board summarizes the problem of prison gerrymandering.

Counting inmates this way allows legislators who draw electoral lines to inflate the power of certain areas with “constituents” who have been stripped of the right to vote and have no interaction with the larger community.

The editorial also cites the recent decision in Cranston, Rhode Island, as evidence that counting people where they are temporarily incarcerated is unconstitutional.

The federal courts have recently begun to see this gerrymandering as a threat to electoral fairness. In May, for example, a United States District Court held that the city of Cranston, R.I., had violated the principle of one person one vote by deeming inmates at a correctional facility “residents” for the drawing of district lines for the City Council and the local school committee.

The court rightly found that the inmates who made up about 25 percent of Cranston’s Ward 6 were not true constituents. According to court documents, their median length of stay was only 99 days, which can in no way be seen as permanent residency. Those convicted of felonies were barred from voting. And inmates held for reasons other than a felony conviction, the court pointed out, were able to vote — but only by absentee ballot based on their addresses before incarceration. This meant that every seven voters in Ward 6 had the same political power as 10 voters in the city’s other wards.

While a few states have outlawed prison gerrymandering on their own, responsibility for ending the practice permanently and nationally lies with the Census Bureau.

Some states can prevent prison-based gerrymandering by simply counting incarcerated people at their home addresses. But according to an analysis by the Prison Policy Initiative, some states are prohibited by law from adjusting census data when drawing district lines. In other words, the principle of one person one vote will continue to suffer until the Census Bureau changes the way it counts prisoners.

by Peter Wagner, July 15, 2016

Of the 155 comments submitted to the Census Bureau in 2015 calling for incarcerated people to be counted at home in the next Census, two letters from residents of rural upstate New York are notable because they discuss how the county governments in this prison-heavy region of the state consider the question of whether a prison cell is a residence.

Dan Jenkins wrote about Franklin County’s view that a prison cell is not a residence:

I live, since the late 1990’s, in Franklin County, New York, a rural county that has a large prison population. Prisoners are not residents of our community as they originate outside of our community, they have no interaction with our community and immediately leave the community when their sentences expire or when the Department of Corrections chooses to transfer them elsewhere. Enumerating these populations as part of our community forces our community to choose between either: (1) rejecting your counts, or (2) using census data that dilutes the votes of most of our community’s residents to the benefit of the few who live immediately adjacent to the prison.

I have been concerned about the implications of your “residence rule” for democracy within rural communities since the 1990 Census when I was a resident of another upstate New York county which similarly hosted a large correctional facility. I, and many of my Jefferson County neighbors were concerned and raised public awareness that relying on your counts resulted in county apportionment that diluted the votes of residents who did not leave near the prisons.

In the late 1990’s, I moved to Franklin County and was again involved as a citizen activist in redistricting. There, I was pleasantly surprised to learn that I would not need to organize a post-2000 lawsuit against Franklin County because my county was already committed to modifying your census data to remove the prison populations and avoid what is now commonly called “prison gerrymandering.” […]

What should be obvious from my letter is that I, along with the elected leaders of my county, were concerned that including the prison population where the Census Bureau counted it but where those people — 10% of our county’s Census population — do not reside would have a vote dilutive impact on the other parts of our county. We simply did not want to draw a county legislative districts that had a preponderance of incarcerated people. Such districts would have given every county resident living near the prisons much more voting power than the other residents of the county.

Having considered the effects of “prison gerrymandering” on rural counties that host prisons, I and many of my neighbors came to the obvious conclusion that the Census Bureau’s counts are inaccurate in so far as the Bureau counted incarcerated people as residents of the prison locations. As a result, we removed the prison populations from the one set of legislative districts that we could control — our county districts.

And here I feel I need to clarify our approach, given current statements from some plaintiffs in the current Texas case about excluding some non-voting populations from redistricting.

For us, in Franklin County, the decision was not whether to count incarcerated people, but where they should rightly be counted, which we think is at their home of record. We had no right to count prisoners as local constituents, they relied on the representative services of their home legislators, and there is nothing that one of our county legislators could do for them.

Removing the prison population was the best we could do because we lacked authority over the redistricting bodies of the New York City Council, the Albany City Council and the other home locations of the incarcerated people. As I, along with two neighbors wrote to you in our July 9, 2004 comment letter: “We know of no complaints from prisoners as a result, as they no doubt look to the New York City Council for the local issues of interest to them.”

Thankfully, New York State took things one step further with the passage of Part XX (ending prison gerrymandering at the state and local levels) which made sure that all state prisoners are counted in the appropriate locations. This is legislation that I and many of my neighbors supported. And while I support Part XX, I must note that the law had one shortcoming that only the Census Bureau can fix: Part XX did not reallocate federal prisoners to their homes; it simply removed them from the count.

The Census Bureau is the only entity which can provide a complete solution to the redistricting confusion caused by the current “usual residence rule.” I urge you to adjust this policy and count all prisoners at their homes of record in the next federal Census.

Martha Swan, from the neighboring county of Essex, also wrote that her county doesn’t consider a prison cell to be a residence. Swan explains that the county concluded that using the Census Bureau’s prison counts to draw county legislative districts results in vote dilution for other parts of the county, and went as far as to write that conclusion into local law:

I am writing … to urge you to count incarcerated people in their home districts.

My name is Martha Swan and I live and work in Essex County in northern New York, near the border with Canada. I live in the state’s largest and most sparsely populated Senate district. My Senate district has more people incarcerated in state prisons than any other district in the state.

I would like to focus my comment on documenting that my county does not consider incarcerated people to be residents of our county. There are 6 counties in my senate district. Four of those counties contain prisons, and all 4 choose not to count the prison populations when drawing county districts or designing weighted voting systems.

My county, Essex, justified its decision in its local law with a lengthy discussion on the practical and legal grounds of why inmates are not residents of the county. While I understand that more than 200 counties across the United States do this as well, I have read that my county was the one of the few to put its reasoning in writing and then vote it in to law.

For that reason, I would like to share with you part of Essex Local Law No 144 of 2012:

“Persons incarcerated in the state and federal correctional institutions have been convicted of criminal acts constituting felonies and their presence in Essex County is considered involuntary. These incarcerated persons: are not residents of the County since they are here involuntarily and can be relocated by the Commissioner of Corrections at the latter’s discretion; are not entitled to vote and thus are not voters in Essex County; and receive no services from the County – except when they commit new criminal acts and are brought before County Court, or when they are entitled to assignment of counsel as indigents in connection with parole hearings under New York Executive Law Article 12-B. Persons incarcerated in state and federal correctional institutions live in a separate environment, do not participate in the life of Essex County, and do not affect the social and economic character of the towns in which they are located.

“The inclusion of these federal and state correctional facility inmates unfairly dilutes the votes or voting weight of persons residing in other towns within Essex County.”

Very similar language was also used in Essex County Local Law No. 1 of 2003. Recognizing that you may not have ready access to my small county’s local laws, I have attached the 2003 and 2012 laws to this letter.

I urge you to follow the lead of Essex County New York and count incarcerated people as residents of their pre-incarceration addresses and not as residents of my county.

by Jyoti Jasrasaria, July 14, 2016

On July 19, 2015, the NAACP Legal Defense and Educational Fund, Inc. (LDF)—the nation’s oldest civil rights and racial justice law firm—submitted a comment letter in response to the Census Bureau’s Federal Register Notice about the Residence Rule and Residence Situations (Rule), 80 FR 28950 (May 20, 2015).

In its letter, LDF urges the Census Bureau to count incarcerated people as residents of their last known pre-arrest home address, rather than of the particular prison facility where they happen to be located on Census Day. According to LDF, first, this change would make the Rule more consistent with existing state laws, legal principles, and ordinary definitions regarding a person’s residence. Second, it would better align the Rule with the principles of an inclusive democracy by avoiding the inflation of political power in some communities (namely white rural communities where prison facilities tend to be located) over others (namely communities of color that are disproportionately represented in prison populations due to racial discrimination in the criminal system) when legislative districts are drawn. Third, an updated Rule would provide a more accurate picture of the nation.

For example, in 2010, 884 incarcerated Black individuals made up 56% of Martin County, Kentucky’s incarcerated population, but 12 Black residents made up only about 1% of the county’s non-incarcerated population. LDF asserts that these disparities in population are not only distressing, but also consequential for political participation:

[T]his artificial inflation dilutes the voting strength of urban areas where prisons are fewer and, thereby, weakens the political power of minority communities. This contravenes the constitutional principle of one person, one vote, which requires that everyone is represented equally in the political process, as well as the prohibition by the Voting Rights Act, now celebrating its [51st] anniversary year, on the dilution of the voting strength of minority communities.

LDF highlights the importance of an accurate Census count in light of its impact on redistricting. States and local jurisdictions often rely on Census data for redistricting purposes to carry out prison-based gerrymandering. This is the practice of counting incarcerated people where they are confined when drawing legislative districts rather than in their home communities, where they maintain enduring ties while they are imprisoned and where they likely will return. The average sentence for people incarcerated in state prisons is less than three years, but the redistricting and other ramifications that result from prison-based gerrymandering last an entire decade. Critically, counting incarcerated people as residents of their prison facilities is unjust given that incarcerated people are overwhelmingly denied the right to vote and do not interact with their surrounding communities by using parks and roads. LDF contends:

[P]rison-based gerrymandering is unlawful precisely because it artificially inflates population numbers, and thus, the political influence, of districts where prisons are located, at the expense of voters living in all other districts. Indeed, prison-based gerrymandering is all-too reminiscent of the infamous ‘three-fifths compromise,’ whereby enslaved and disfranchised African American people were counted to inflate the number of constituents in—and thus, the political influence of—Southern states before the Civil War.

As LDF’s letter explains, without an updated Rule, LDF and other organizations have been litigating and advocating for policy changes on a state-by-state and locality-by-locality basis to ensure compliance with the one-person, one-vote constitutional principle and the Voting Rights Act’s protection of minority communities’ voting strength. A Rule that counts everyone in the right place would help ensure a more robust democracy that gives all Americans equal representation in the political process.

Notwithstanding LDF’s urging, the Census Bureau’s proposed Rule has seemingly ignored LDF’s comments and maintained its practice of counting incarcerated people at their prison facility address.

Jyoti Jasrasaria, a 2L at Harvard Law School, is a 2016 summer legal intern at the NAACP Legal Defense & Educational Fund, Inc.

by Jyoti Jasrasaria, July 13, 2016

Justin Levitt sent a letter to the U.S. Census Bureau commenting on the Census Bureau’s Residence Rule and Residence Situations (Rule), 80 FR 28950 (May 20, 2015).

In his letter, Professor Levitt encouraged the Census Bureau to count incarcerated individuals at their last known address before incarceration as a means to further equal representation in the democratic process. As a professor of constitutional law and the law of democracy at Loyola Law School, as well as a practitioner and litigator in the area of political participation, Professor Levitt bases his comments on the structure of representation and the effects of various voting systems and districting plans.

Professor Levitt explains that the Census counts most people at their “home.” Those whose “usual residence” is different from their “home” are typically in a new location for work or education, “and they are generally intertwined with the communities where they are laying their heads most often” by interacting with their new neighbors, following community rules and regulations, and enjoying the benefits of local services and activities. However, this is not the case for the 2.2 million people in the United States who are incarcerated. Professor Levitt points to the fact that incarcerated individuals have little in common with the residents in the communities surrounding their correctional facilities. He notes the results of a recent study:

[T]here are now more than 450 counties where the proportion of African-Americans in the incarcerated population is larger than the proportion of African-Americans in the surrounding county — and more than 200 counties where the proportion of African-Americans in the incarcerated population is more than ten times larger than the proportion of African-Americans in the surrounding county.

Moreover, incarcerated individuals do not interact with the local community, and “most Village Township residents will not likely consider them ‘neighbors.’” Elected officials themselves do not always consider incarcerated people to be their constituents. As Professor Levitt recounts:

I]n 2002, a New York state legislator representing a district housing thousands of incarcerated individuals said that given a choice between the district’s cows and the district’s prisoners, he would “take his chances” with the cows, because “[t]hey would be more likely to vote for me.”

Indeed, according to Professor Levitt, 28 states have explicitly provided that incarcerated persons do not lose their residence in their home communities when they are incarcerated.

Professor Levitt asserts that the Census’s current practice creates (1) informational harm by promulgating misleading data about community demographics and (2) democratic harm by giving some communities disproportionate political influence and leaving others with diluted voting strength. In support of this point, Professor Levitt notes that 87% of the people living in one district of Lake County, Tennessee were incarcerated, which gave that district’s 344 non-incarcerated residents the same representation in county government as the 2500 or so individuals in the other two districts. Likewise, there are sometimes very few individuals eligible to run for office in districts with large incarcerated populations.

As Professor Levitt’s letter explains, many states and localities have attempted to compensate for the Census Bureau’s inadequate counting. The Census Bureau should assist these efforts by updating its current practice, which pre-dates the equal representation principle as well as the sharp increase in the incarcerated population. Moreover, according to Professor Levitt, there are feasible ways, which he suggests, such as surveying and questioning incarcerated people, just as the Census Bureau does for non-incarcerated people, to collect the information regarding an incarcerated individual’s last known address.

Despite Professor Levitt’s well-supported arguments for updated criteria for counting incarcerated populations, the Census Bureau has proposed to continue counting incarcerated people at their correctional facilities and, thus, to continue providing faulty demographic information that distorts political representation.

Jyoti Jasrasaria, a 2L at Harvard Law School, is a 2016 summer legal intern at the NAACP Legal Defense & Educational Fund, Inc.

by Zack Goldberg, July 12, 2016

On July 17, 2015, Ms. Chandra Bozelko submitted a comment letter in response to the Census Bureau’s May 20, 2015 Federal Register Notice regarding the 2020 Decennial Census Residence Rule and Residence Situations.

Ms. Bozelko explained that she was formerly incarcerated at the York Correctional Institution in Niantic, Connecticut. Despite remaining registered to vote in her hometown of Orange, Connecticut, the Census Bureau’s residence rule counted her as a resident of the prison in Niantic.

Ms. Bozelko asserts that the Census Bureau’s practice of counting incarcerated persons as “residents” of their correctional facilities, instead of their hometowns, harms all of Connecticut’s communities – both those where prisons are located and the home communities that lose their residents to imprisonment. Ms. Bozelko explains: “counting [her] in one town when [she] was registered in another is a poor example of how we protect a citizen’s most treasured right.” Because “[t]he right to vote is sacred,” Ms. Bozelko urges the Census Bureau to count incarcerated persons as residents of their home addresses – and not as residents of their prisons’ addresses – in order to more accurately reflect the population of a given community.

Notwithstanding Ms. Bozelko’s experience and recommendation, the Census Bureau has proposed to maintain its policy of counting incarcerated individuals as residents of their prison facilities rather than their home communities.

To learn more about Ms. Bozelko’s leadership as a spokesperson for a Connecticut campaign to reform how incarcerated people are counted by the Census, click here. To read Ms. Bozelko’s recent op-ed on this issue, visit here.

Zack Goldberg, a 3L at Brooklyn Law School, is a 2016 summer intern at the NAACP Legal Defense & Educational Fund, Inc.

by Zack Goldberg, July 11, 2016

On June 29, 2015, Professor Gerald Webster submitted a comment letter in response to the Census Bureau’s May 20, 2015 Federal Register Notice regarding the 2020 Decennial Census Residence Rule and Residence Situations.

As a professor, redistricting consultant for state and local governments, and expert witness in redistricting litigation, Professor Webster is a frequent user of census data. He asserts that counting the imprisoned population at the site of the prison can produce inequitable results in the redistricting process, commonly known as prison gerrymandering. Professor Webster contends that prison gerrymandering is particularly impactful in redistricting at the local level where jurisdictions with smaller total populations and significant imprisoned populations are given inflated voting power compared to those districts without prison populations. Additionally, Professor Webster contends that minority groups – who are disproportionately impacted by incarceration – are likely to have their voting strength diluted in the communities where the imprisoned populations come from as a result of prison gerrymandering.

Professor Webster provides an example of prison gerrymandering in his home state of Wyoming related to state senate districts 3 and 6. “To avoid having two incumbents in the same district, an appendage from district 6 is drawn north for 17 miles to include a prison housing approximately 500 individuals.” Since the ideal population for a Wyoming state senate district is approximately 19,000 individuals, the inclusion of 500 non-voting prisoners at the site of the prison artificially “inflates the value of ballots cast by non-prison voters in district 6 relative” to surrounding districts. A map of the prison gerrymandered districts, created by the Prison Policy Initiative, is available here. According to Professor Webster, this type of gerrymandering is unfair and undemocratic to the voters in the other 29 state senate districts.

Notwithstanding Professor Webster’s concerns, the Census Bureau has proposed to maintain its policy of counting incarcerated individuals as residents of their prison facility addresses rather than of their permanent home addresses.

Zack Goldberg, a 3L at Brooklyn Law School, is a 2016 summer intern at the NAACP Legal Defense & Educational Fund, Inc.

by Harrison Stark, July 8, 2016

On July 18, 2015, Todd A. Breitbart submitted a letter commenting on the Census Bureau’s May 20, 2015 Federal Register Notice regarding the 2020 Decennial Census Residence Rule and Residence Situations. Mr. Breitbart, who has substantial experience in redistricting and population assessments in New York and California, contends that “[p]rison inmates should be counted as residents of their permanent home addresses, not at the places of incarceration.” Mr. Breitbart further compares the Census Bureau’s treatment of prisoners to other transient populations and argues that the Census Bureau is uniquely positioned to collect the data necessary to change their existing practice for counting imprisoned people.

Specifically, Mr. Breitbart compares the Census Bureau’s treatment of prisoners to the treatment of college or university students and individuals travelling for business or pleasure. Noting that students typically are counted at their temporary addresses (i.e., their schools), while travelers are counted at their permanent addresses (i.e., their homes they return to), he explains that the Bureau deviates from a strict “eat and sleep” interpretation so both groups can be counted at residences they voluntarily call home.

Moreover, Mr. Breitbart contends that there is a democratic deficit for the prisoners who cannot claim representation in the same way as students and travelers. As Mr. Breitbart points out, “members of Congress and state legislators, in furthering the interests of the permanent residents of their districts, also seek to further the interests of the students and visitors.” Indeed, representatives expand and support institutions of higher learning—for the benefit of students—and seek economic prosperity in their districts—to attract travelers. However, “[i]n contrast, no Congress member or state legislator seeks to represent the interests of the prisoners incarcerated in his or her district… To the degree that the prisoners enjoy representation in Congress or state legislatures, it is only from the representatives of the communities where they left behind their families and friends, to which they will eventually return, and where they may once again be voters.”

Moreover, Mr. Breitbart argues that urban communities like New York City, in particular, “[are] disadvantaged by the census rules relating to both prisoners and visitors.” As Mr. Breitbart shows, when New York reallocated its count of prisoners from “their places of incarceration” to “their permanent home addresses [in 2010], the population of New York City showed a net increase of 21,082,” a conservative number that did not take into account federal data. Mr. Breitbart furthered notes that “[New York C]ity’s population is permanently swollen by hundreds of thousands of visitors, but these persons are not counted here… if visitors are to be counted at their permanent home addresses, not where they are sleeping on Census Day, there is an even stronger argument for applying that principle to prisoners.”

Mr. Breitbart contends that the Census Bureau can change its practice of counting imprisoned people in the wrong place seamlessly and effectively. He explains:

[W]e now have extensive experience demonstrating that it would be quite practicable to count prisoners at their permanent home addresses. The states of New York and Maryland successfully adjusted their population databases for the 2010-12 redistricting without a huge investment of resources… These experiences can provide a model, and should lead the Census Bureau to reconsider its previous view that it would be prohibitively expensive to do what New York and Maryland accomplished.

According to Mr. Breitbart, the Census Bureau is uniquely situated to implement a change to how it counts imprisoned people. While individual states faced obstacles in collecting prisoner address information because of confidentiality concerns, Mr. Breitbart suggests that “the Census Bureau may well be able to address [the Federal Bureau of Prisons’] concerns about preserving confidentiality” and “will be in a far better position than the states, individually or collectively, to allocate prisoners to the census blocks of their permanent home addresses.”

Finally, Mr. Breitbart states: “Prisoners should be counted at the homes to which they will eventually return, where they left behind their families and friends, where they are represented by elected officials, and where they may once again be voters.”

Notwithstanding Mr. Breitbart’s recommendation, the Census Bureau has proposed to maintain its policy of counting incarcerated individuals as residents of their prison facility addresses rather than of their permanent home addresses.

Harrison Stark, a 2L at Yale Law School, is a 2016 summer intern at the NAACP Legal Defense & Educational Fund, Inc.

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  • May 15, 2018:
    Our Policy Analyst Lucius Couloute will be at the LEDA Summit on Race and Inclusion in Holland, Michigan, presenting his research on the challenges and disadvantages people face when they are released from prison. Tickets are available on LEDA’s website.

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