AGs should take an active role in ensuring an accurate 2020 Census. Part of that is tackling prison gerrymandering.

by Aleks Kajstura, October 11, 2018

Yesterday John Thompson, the most recent Director of the U.S. Census Bureau, and Robert Yablon, Assistant Professor of Law at the University of Wisconsin published a briefing for state attorneys general. The brief urges attorneys general to start planning for the 2020 Census now, and highlights key issues facing the states, including prison gerrymandering:

…[A]ttorneys general can spur reflection and reform when it comes to how their jurisdictions use census data. Although the federal government must rely on the Census Bureau’s actual enumeration for purposes of congressional apportionment, states often have more flexibility to use adjusted numbers or to decouple state programs from census data. By way of example, the Census Bureau counts prisoners at their incarceration site rather than at their prior place of residence.
This practice, which some dub “prison gerrymandering,” has long been controversial because it serves to shift political representation … toward communities with correctional facilities and away from prisoners’ home communities. Seeing this as inequitable, a handful of states have rejected the Census Bureau’s approach and reallocate prisoners to their communities of origin when counting their populations for redistricting and other purposes.

Four states and over 200 counties and municipalities already avoid prison gerrymandering, but more work needs to be done.

Efforts to end prison gerrymandering often focus on state legislative action, but as Thompson and Yablon point out, attorneys general play an important role in ensuring equal representation by advising redistricting bodies to comply with principles of one person, one vote. In fact attorneys general already have a long history of guiding municipalities and counties to avoid prison gerrymandering in city councils and county boards even when the state legislatures continue to draw districts based on prisons rather than people.

Census Bureau announcement means another decade of prison gerrymandering. State-by-state reforms are urgent.

February 7, 2018

For Immediate Release — Today, the U.S. Census Bureau announced how it will define residence for the 2020 Census. Ignoring overwhelming public support for 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in how incarcerated persons are counted in the Census, the Bureau announced it is leaving in place the inaccurate and outdated practice of counting incarcerated persons as “residents” of the prison locations instead of their home communities. In response to this development, the Prison Policy Initiative released the following statement:

The Prison Policy Initiative is profoundly disappointed by the Census Bureau proposal to again count nearly 2 million people in the wrong place on Census day. Continuing this practice will ensure another decade of “prison gerrymandering” that unjustly awards extra political power to the regions that host prisons, perverting the principles of equal representation.

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 two years ago, over 99% of the 77,863 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 planning 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.”

“The Bureau’s decision is inconsistent with the way the ‘usual residence’ rule is applied to other similarly-situated people,” explained Legal Director Aleks Kajstura. “The Census Bureau is picking favorites based on economic and racial privilege: if boarding school students are deemed to live at home, then the same logic should be applied to incarcerated people.”

The Prison Policy Initiative, along with many other civil rights, voting rights, and criminal justice advocates, have long urged the Bureau to update its rules on incarcerated persons. As our research has demonstrated over the last two decades, the Census Bureau’s practice of counting incarcerated people at the location of the facility harms our democracy at all levels of government.

When state and local officials use the Census Bureau’s prison count data attributing ‘residence’ to the prison location, 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. Treating a prison as a “usual residence” reflects a fundamental misunderstanding of the nature of incarceration. The critical issue is that while a prison itself seems permanent, the people located there on any given day are not. 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.

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. Today’s decision continues to sacrifice the accuracy of the Census and harm communities of color.

Despite this major disappointment, the advocates noted two positive developments and pledged to redouble their efforts to help states make the data suitable for redistricting. The Bureau is planning on publishing correctional facility populations early — at the same time as the main redistricting data files that they send to the states. And the Bureau is offering to help states with the number crunching required to adjust the redistricting data on their own even as it leaves people across the country at the mercy of an ad hoc approach to equal representation.

The earlier data publication will make the data adjustments easier for states that end prison gerrymandering on their own, and will be particularly useful for states with short redistricting deadlines. This data will give redistricting officials the Census counts of people in correctional facilities at the location of the facility – enabling states to subtract incarcerated people from the prison location and, in conjunction with the state’s own home address data, reallocate them back home for that state’s redistricting.

The Prison Policy Initiative has long argued that the Census Bureau is in the best position to end prison gerrymandering nationwide, and the organization hopes that, by 2030, the Bureau’s residence rules will reflect reality. But with 2020 and redistricting just around the corner, today’s disappointing announcement makes it all the more urgent that more states pass legislation to end prison gerrymandering in their states.

 

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Prison gerrymandering does not impact federal aid, "here is not a straight linear relationship between state population count and federal funds flow".

by Aleks Kajstura, August 22, 2017

Today, as happens every once in a while, a new estimate was published of how much federal funding is guided by the Census. And some folks familiar with how prison gerrymandering impacts representation start worrying whether it also impacts funding allocation. The short answer is that it does not. The long answer can be found here.

The Leadership Conference’s Counting for Dollars: Why It Matters fact sheet puts this latest analysis in context. And as the report, Counting for Dollars 2020: The Role of the Decennial Census in the Geographic Distribution of Federal Funds itself explains, per capita analyses of this type cannot be used to calculate how money follows people:

There is not a straight linear relationship between state population count and federal funds flow. The per capita figure allows cross-state comparisons of fiscal reliance on census-guided programs. It does not indicate the amount by which federal funding increases for each additional person counted.

Gov. Christie vetoes bill that would have ended prison gerrymandering in New Jersey; denies equal representation to state residents.

by Aleks Kajstura, July 14, 2017

Resurfacing debunked arguments, Governor Christie just vetoed a bill that would have ended prison gerrymandering in New Jersey. Senate Bill 587 passed the Senate in November, and the Assembly on Monday, May 22.

The Governor’s actions perpetuate a reliance on flawed data that results in using prison populations to pad the legislative districts that contain prisons. This enhances the weight of votes cast in those districts, while diluting every vote cast by every other person in the state. In practice, prison gerrymandering uses prisons to transfer power away from home communities of incarcerated people to those who live near prisons.

The problem is amplified by New Jersey’s voting laws. Like in most states, people convicted of felonies in New Jersey cannot vote while they are incarcerated, and those who are incarcerated for misdemeanors or awaiting trial vote absentee in their home districts. This makes sense; after all, people have much closer ties to their home community than where they happen to be incarcerated on Census Day. Incarcerated people are transferred frequently between facilities, generally staying at any given facility for just 7-9 months (a fact ignored by Christie). This means that someone who votes while incarcerated is required to vote for their representative in their home district, but on paper gets counted toward as a constituent of the representative of the prison district. This mismatch creates unequal representation.

And New Jersey had already taken steps to ameliorate the effects of prison gerrymandering on school boards; extending those equal representation protections to state legislative districts was the logical next step.

Senate Bill 587 was a simple state-based solution to a problem that should have been corrected by the federal government. The bill would have used the state’s administrative records to reassign incarcerated people to their home addresses before redistricting. And to address a common misconception related to the distribution of funding (which Christie also alluded to): the bill would have no effect on the distribution of federal or state funds — all funding programs have their own data sources that do not rely on redistricting data.

Ideally, the U.S. Census Bureau will change its policy and count incarcerated people as residents of their home addresses. And last year, the Census Bureau sought comments on its current practice of counting incarcerated people at the location of the correctional facility in which they happen to be on Census day, rather than at home where they live. The Census Bureau had yet to release a final rule on where it will count incarcerated people 2020 census.

States need to take action now, on their own while waiting for the Census Bureau to correct the way it counts incarcerated people. There is still time before the next redistricting cycle for New Jersey to join California, Delaware, Maryland and New York in ensuring equal representation for their residents by ending prison gerrymandering on its own.

Recent Law Review pieces from Harvard and Stanford, conclude that prison gerrymandering is unconstitutional, question First Circuit's logic to the contrary

by Aleks Kajstura, June 22, 2017

A full academic year has passed since the last ruling in a case that sought to end prison gerrymandering in Cranston Rhode Island, and that time was put to good use, resulting in two recent Law Review publications.

As you may recall, in Davidson v Cranston, the District Court ruled the city’s prison gerrymandering unconstitutional, reasoning that the City could not count incarcerated people in city council districts as if they were city residents while not treating them as constituents when it came time to represent them. But the First Circuit Court of Appeals reversed the decision, allowing the City to continue using the Census’ unadjusted redistricting data despite the prison miscount.

A recent Harvard Law Review case summary by Ginger Jackson-Gleich looks at Davidson and wastes no time in dismantling the First Circuit’s reliance on Evenwel in allowing prison gerrymandering.

Recently, in Davidson v. City of Cranston, the First Circuit held that the City of Cranston, Rhode Island did not violate the Equal Protection Clause by counting prison inmates as residents of one of the City’s six wards when it redistricted. To reach this conclusion, the court relied on the Supreme Court’s decision in Evenwel v. Abbott, which approved broadly of total-population-based approaches to redistricting. While Evenwel might appear to sanction Cranston’s redistricting plan, the First Circuit’s decision is at odds with Evenwel‘s underlying reasoning and emphasis on representational equality.

This quick 8-page read provides a thorough summary and analysis of prison gerrymandering through the lens of Davidson and Evenwel.

For a much deeper dive, there is a new 66-page analysis from the Stanford Law Review, The Emerging Constitutional Law of Prison Gerrymandering, by Michael Skocpol:

This Note undertakes an in-depth analysis of one-person, one-vote challenges to prison gerrymanders and is the first scholarly work to analyze this emerging body of law. It argues that the Equal Protection Clause does limit prison gerrymandering, advocating a novel approach for adjudicating these claims—one that looks principally to community ties (or the absence thereof) between prisoners and the localities that house them. It considers the impact of the Supreme Court’s recent landmark decision in Evenwel v. Abbott and other key precedents. It also discusses relevant voting rights scholarship that courts have thus far overlooked. Ultimately, this Note aims to shed light on an underexamined constitutional right—the right to equal representation, as opposed to an equal vote—and to provide courts and litigants with the tools they need to effectively tackle prison gerrymandering claims going forward.

The second half of the Stanford piece is particularly valuable for exploring the right to equal representation as a path forward in the struggle to end prison gerrymandering.

Bill to end prison gerrymandering in New Jersey has passed the Senate and Assembly, is now headed to Governor's desk.

by Aleks Kajstura, May 25, 2017

The New Jersey legislature just voted to end “prison gerrymandering” — the practice of using prisons to transfer power away from home communities of incarcerated people and giving it to legislative districts that contain prisons. Senate Bill 587 passed the Senate in November, and the Assembly on Monday, May 22. Now it’s up to Governor Christie to sign the bill into law and end prison gerrymandering in New Jersey.

Before I delve into what this bill actually does, I’ll address a common misconception related to the distribution of funding. The bill would have no effect on the distribution of federal or state funds — all funding programs have their own data sources that do not rely on redistricting data.

With that clarification out of the way, here is what the bill is all about: New Jersey stumbled into the prison gerrymandering problem because, like many states, bases its legislative districts on U.S. Census Bureau data. Unfortunately, the Census counts incarcerated people as if they were residents of the correctional facility where they happen to be located on Census day. This quirk in the Census data creates unequal representation when it is used for redistricting.

The unfortunate result of using prison populations to pad the legislative districts that contain prisons is to enhance the weight of votes cast in those districts while diluting every vote cast in districts without prisons.

The problem is amplified by New Jersey’s voting laws. People convicted of felonies in New Jersey cannot vote while they are incarcerated, and those who are incarcerated for misdemeanors or awaiting trial vote absentee in their home districts. This means that someone who votes while incarcerated is required to vote for their representative in their home district, but on paper gets counted toward as a constituent of the representative of the prison district. This mismatch creates unequal representation.

Senate Bill 587 is a simple state-based solution to a problem that should have been corrected by the federal government. The bill uses the state’s administrative records to reassign incarcerated people to their home addresses before redistricting. Ideally, the U.S. Census Bureau will change its policy and count incarcerated people as residents of their home addresses, but the state should be prepared to have its own solution in place for the next redistricting cycle.

New Jersey is poised to become the fifth state to pass legislation ending prison-based gerrymandering. New York and Maryland have already passed and implemented similar laws to count people in prison at home for this round of redistricting, and both states’ laws were successfully defended in court. Delaware and California passed legislation that will take effect after the next Census in 2020.

Governor Christie can now take the final step to end prison gerrymandering and ensure equal representation for all New Jersey residents.

NJ bill to end prison gerrymandering passed Assembly Judiciary Committee (already passed the Senate in November).

by Aleks Kajstura, February 14, 2017

Yesterday New Jersey’s bill to end prison gerrymandering (A2937/S587) passed the Assembly Judiciary Committee. The bill already passed the Senate in November, and is expected to be taken up by the Assembly as early as March.

The City of McAlester illustrates how prison gerrymandering skews representation in Oklahoma.

by Aleks Kajstura, November 8, 2016

Just in time for this election day, Kate Carlton Greer of KOSU reminds us that not all votes end up equal when mass incarceration meets outdated redistricting practices.

Her reporting gives a great overview of how prison gerrymandering dismantles our democracy’s bedrock principle of “one person, one vote” in Oklahoma.

After finishing up work at the airplane manufacturing plant where Robert Karr has worked for more than three decades, the McAlester city councilman drives his pickup truck around the town’s 4th ward. …

The Oklahoma State Penitentiary sits in Karr’s ward. But it’s not the only prison here. The Jackie Brannon Correctional Center is another block away. And those prisoners — all 1,500 or so — are technically Karr’’s constituents.

Instead of 3,000 constituents, Karr now represents around 1,300. His ward is less than half the size of others in the city, so his vote on the city council is actually more powerful.

It might not be such a big deal in local politics, but Karr worries about the implications on a larger scale.

“When you’re more powerful than a local city like a state representative or something, or a United States representative, it really wouldn’t be fair with somebody like that,” Karr says.

…

“If you count a few people in the wrong place, that’s not ideal,” says Aleks Kajstura with the Prison Policy Initiative…. But as incarceration rates have grown, Kajstura says equal representation has become harder to maintain.

Read or listen to the whole story here.

Race for Rhode Island state House district shows how incarcerated people only count as constituents at redistricting time.

by Aleks Kajstura, November 7, 2016

A weekend local news story from Rhode Island gives a great illustration of prison gerrymandering in action:

This year, the policy has a direct impact on the high-profile race between Mattiello and Frias, which will determine whether the Cranston Democrat remains speaker of the House, arguably the most powerful political position in Rhode Island.

…

Democratic House Speaker Nicholas Mattiello and his Republican challenger Steven Frias have fewer doors to knock on than their peers this election season because upwards of a thousand of their constituents don’t have doors at all – they live behind bars.

…

The two candidates “are competing for voters in a smaller pool than in all but one other district in Rhode Island,” John Marion, executive director of Common Cause Rhode Island….”

Every district is supposed to have equal population, to ensure that each representative represents an equal number of constituents. But people who are incarcerated in Rhode Island are counted in the district where the prison is located, rather than for their own representative.

Steven Brown, executive director of the Rhode Island ACLU explained:

… inmates convicted of felonies cannot legally vote in Rhode Island, and only those awaiting trial or serving time for misdemeanors can exercise the right while behind bars. As for inmates who can vote, the law states that they must cast absentee ballots in their hometowns of origin, which aren’t necessarily the same as the districts the [prison complex] lies in.

So it’s understandable that when asked about prison gerrymandering, Frias said: “I’m focused on the residents that can vote in our district”. The two candidates don’t consider the people incarcerated in their district as constituents at election time, but whoever wins the race will get to claim these very same people as constituents when drawing district lines. That is not how representative democracy is supposed to work; it’s time Rhode Island follow four other states and end prison gerrymandering now.

Thirteen Senators call on the Census Bureau to count incarcerated people at home starting in the 2020 Census.

by Aleks Kajstura, September 30, 2016

letter thumbnail

In a letter sent to the Census Bureau last week, 13 United States Senators request that the Census Bureau count incarcerated people as residents of their homes in the 2020 Census.

The Senators highlight both practical and constitutional reasons to count incarcerated people at home, concluding:

To ensure that all people are fairly counted as part of their home communities, and in pursuit of our constitutional ideals, we join this chorus of support to ask that the Census Bureau act without delay to correct for this inequality in the 2020 Census.

The Senators’ request echoes 100,000 other voices submitted in comments to the Census Bureau last month. You can read the Senators’ letter in our collection of the comments the Bureau received in 2016.

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