New Jersey Governor signs bill ending prison gerrymandering

Over 25% of U.S. residents now live in a state, county, or municipality that has ended prison gerrymandering.

January 21, 2020

Easthampton, Mass. — Today, New Jersey Governor Phil Murphy signed a bill ending prison gerrymandering — the practice of using prisons to transfer power away from the home communities of incarcerated people, and give it to legislative districts that contain prisons. The state will now draw districts with their home, not prison, addresses.

Senate Bill 758 passed the Senate in February 2019, and the Assembly on January 13, 2020. The bill, now law, caps a campaign to make New Jersey the 7th state to end prison gerrymandering and ensure equal representation for all of its residents. Over 25% of US residents now live in a state, county, or municipality that has ended prison gerrymandering. (The other states are New York, California, Maryland, Delaware, Nevada, and Washington State).

This legislative effort spanned multiple sessions and was supported by many groups, most recently including the New Jersey Institute for Social Justice and the American Civil Liberties Union of New Jersey. The bill’s sponsors included Senators Cunningham and Cruz-Perez, and Assemblymembers Sumter, Mukherji, and Quijano. The sponsors emphasized that the bill will have no effect on federal or state funds in New Jersey. All funding programs have their own data sources that do not rely on redistricting data.

“Prison gerrymandering is a fixable problem of political representation caused by the growth of prison populations in past decades,” said Prison Policy Initiative Legal Director Aleks Kajstura. Like most states, New Jersey 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 on Census day. When states like New Jersey use this data for redistricting, it leads to unequal representation: People who live near prisons are given extra representation in the state legislature, while every other resident in the state receives less representation.

Senate Bill 758 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 in the 2030 Census, but for now states should be prepared to have their own solutions in place.

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. California, Delaware, Nevada, and Washington State passed legislation that will take effect after the 2020 Census.

As more states take on the task of adjusting Census data to make it usable for drawing equal districts, the Census Bureau has taken some small but very helpful steps. For the first time, the 2020 Census will include correctional population data within the main redistricting dataset (the PL 94-171 file). Identifying the correctional facilities makes the data-crunching easier for states that end prison gerrymandering on their own, and will be particularly useful for states with short redistricting deadlines, such as New Jersey. 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.

States should follow the lead of New Jersey and Governor Murphy and end prison gerrymandering to ensure equal representation for all their residents.

Interview with Heather Villanueva of More Equitable Democracy about their successful campaign to end prison gerrymandering in Washington state

How a focus on accurate data and on Native communities helped end prison gerrymandering in Washington State.

by Aleks Kajstura, December 2, 2019

Prison Policy Initiative Legal Director Aleks Kajstura sat down with Heather Villanueva, Deputy Director of More Equitable Democracy to discuss their recent win in Washington that made that state the 5th to end the practice of giving extra political representation to the legislative districts that host prisons. (Shortly after Washington’s bill became law, Nevada became the 6th state to pass this legislation.)

Aleks:

Can you tell us a little about More Equitable Democracy and how fixing the Census Bureau’s prison miscount fit into its mission?

Heather:

More Equitable Democracy is a nonprofit advocacy organization working at the intersection of racial justice and democracy reform. One of the things we are concerned about is the basic building blocks of redistricting: the Census. Right now the census is coming up and facing quite a few serious financial and logistical challenges. A compromised Census will have serious implications for communities of color and for fair political representation. One of our priorities is to bridge our traditional push for full participation in the census count with larger policy goals of redistricting and redistricting reform.

For More Equitable Democracy, we tend to take a bigger view than just redistricting reform because we want to see bigger changes than just who draws the lines. It’s really about how the whole system of elections is created to either lift up some voices or to silence and put significant barriers in front of others. We’re really interested in developing new ways to build strong coalitions of reformers — and people of color in particular — to really transform our democracy.

Aleks:

You are a new organization working in a number of states on a number of issues and the Washington bill to end prison gerrymandering was one of your first victories. How did you pick this bill to work on?

Heather:

More Equitable Democracy seeks to make structural improvements to democracy and we identified Washington as one of a handful of states where we think we can make the biggest impact. As we considered what issues to prioritize in Washington, we knew that prison gerrymandering reform was gaining traction nationally, but had not been pursued in Washington. So when we saw legislative interest in ending prison gerrymandering, we knew it was an important issue and one that would be a great fit for our other democracy reform efforts in the state, including ranked choice voting, and securing $15 million for community-based census outreach to support an accurate count.

Aleks:

In the past, we’ve talked about how Washington has fewer clusters or large prisons than states like New York and Maryland where the vote dilutive impact of prison gerrymandering is quite stark. Can you tell me why you thought it important to focus on prison gerrymandering even in states like Washington where the numerical impact is not as extreme?

Heather:

That’s right, judging by the numbers, the prison gerrymandering problem in Washington State could be viewed as relatively minor. But the state draws its districts with far greater population equality than most, so Washington was a good place to focus on improving the accuracy of the redistricting data. As you know, what is important about the Census and redistricting is not just that everyone is counted, but where they are counted.

Beyond the simple calculations of vote dilution, we thought it was important to highlight the unique harms on Native American communities. I’m glad that we could help provide a platform for voices from these often overlooked communities, and I thought that the testimony of Patricia Whitefoot of the Yakama Nation was particularly effective raising the harm caused by counting their disproportionately incarcerated members in western Washington prisons rather than in their homes on the Yakama Reservation and discussing how this overlapped with other harmful redistricting decisions.

Aleks:

Ending prison gerrymandering is the rare kind of reform that can benefit almost everyone in the state in one way or another. About the only people who have nothing to gain from reform are the people who live immediately adjacent to the state’s largest prison. Sometimes, though, reform efforts get hijacked by the false myth that changing electoral data will impact funding received by rural communities, and the effort stalls when faced with so much false urban vs rural tension. I’m really impressed that Washington (and Nevada) managed to pass this legislation in just one session, whereas other states have struggled for years. What do you think that folks in other states should see as keys to your success?

Heather:

I think getting the bill passed was a combination of making the right choices at the start and then a lot of hard work.

It probably helped us that legislators were fairly new to the issue of prison gerrymandering, so we were able to keep ahead of any misinformation before it became entrenched.

We also used some messaging that was pretty different than that used in New York and Maryland and in other states. Rather than talk about stopping “gerrymandering” we focused on improving the accuracy of the data. In fact “ensuring accurate redistricting” became the bill’s tagline.

Focusing on data accuracy made a lot of sense in Washington State because we didn’t have the New York-style big numerical impact of prison gerrymandering with the obvious inequality and immediate impact on outcomes. In addition, focusing on “accurate redistricting” allowed us to avoid the political squabbling that “gerrymandering” conversations often illicit and instead start and end with something that everyone agrees on: the idea that the underlying data should be accurate.

This accuracy framework was also a natural fit with our organizational quest for structural reforms for a better democracy. As an organization, More Equitable Democracy does not just focus on what happens when the maps are drawn, we look at the entire process from the bottom up.

Aleks:

That’s a good point. I know you chose that strategy because you thought it was best for the state of Washington, but this accuracy framing will be really important for the Census Bureau to hear when they review the issue again for the 2030 Census. And speaking of the Census Bureau, that now six states have chosen to fix this flaw in the Census, it really increases the pressure on the Bureau to provide a national solution.

Nevada Governor Steve Sisolak signs law ending prison gerrymandering

Nevada moved swiftly, ending prison gerrymandering in a single legislative session.

May 31, 2019

For immediate release — Yesterday, Nevada Governor Steve Sisolak signed a bill into law ensuring that people in state prisons will be counted as residents of their home addresses when new legislative districts are drawn. The new law makes Nevada the sixth state to end the practice known as prison gerrymandering, after Washington passed its own law just last week.

The Nevada Constitution states that, for the purposes of voting, people in prison should be counted as residents of their hometowns. However, the Census Bureau counts incarcerated people as residents of the places where they are incarcerated. As a result, when Nevada used Census counts to draw past legislative districts, it unintentionally enhanced the weight of votes cast in districts containing prisons — at the expense of all other districts in the state.

“Nevada’s new law recognizes that ending prison gerrymandering is an important issue of fairness,” said Aleks Kajstura, Legal Director of the Prison Policy Initiative. “All districts — some far more than others — send people to prison, but only some districts contain prisons. Counting incarcerated people as residents of the prison gives extra representation to the prison district, dilutes the votes of everyone who does not live next to the state’s largest prison, and distorts the constitutional principle of one person, one vote. This new law offers Nevada voters a fairer data set on which future districts will be drawn.”

The legislation, passed as AB 450, applies only to redistricting and will not affect federal or state funding distributions.

Six other states have legislation to end prison gerrymandering pending in the current session. “We applaud Washington and Nevada for enacting common-sense solutions in a single legislative session,” Kajstura said. “Other states currently considering similar bills should follow its example.”

Washington Governor Jay Inslee signs law ending prison gerrymandering

Washington State moved swiftly, ending prison gerrymandering in a single legislative session.

May 21, 2019

For immediate release — Today, Washington State Governor Jay Inslee signed a bill into law ensuring that people in state prisons will be counted as residents of their home addresses when new legislative districts are drawn, making Washington the fifth state to end the practice known as prison gerrymandering.

The Washington State Constitution states that, for the purposes of voting, people in prison should be counted as residents of their hometowns. However, the Census Bureau counts incarcerated people as residents of the places where they are incarcerated. As a result, when Washington State used Census counts to draw past legislative districts, it unintentionally enhanced the weight of votes cast in districts containing prisons — at the expense of all other districts in the state.

“Washington State’s new law recognizes that ending prison gerrymandering is an important issue of fairness,” said Aleks Kajstura, Legal Director of the Prison Policy Initiative, who was present when the bill was signed. “All districts — some far more than others — send people to prison, but only some districts contain prisons. Counting incarcerated people as residents of the prison gives extra representation to the prison district, dilutes the votes of everyone who does not live next to the state’s largest prison, and distorts the constitutional principle of one person, one vote. This new law offers Washington voters a fairer data set on which future districts will be drawn.”

The legislation, passed as SB 5287, applies only to redistricting and will not affect federal or state funding distributions.

Five other states have legislation to end prison gerrymandering pending in the current session. “We applaud Washington State for enacting this common-sense solution in a single legislative session,” Kajstura said. “Other states currently considering similar bills should follow its example.”

The states with pending legislation include:

• Connecticut: HB 5611, introduced by the Government Administration and Elections Committee for the January Session, 2019.
• New Jersey: S758, “requir[ing] incarcerated individual from State to be counted at residential address for legislative redistricting purposes”, introduced by Senators Sandra Cunningham and Nilsa Cruz-Perez, January 9, 2018, and A1987, introduced by Assemblymembers Sumter, Mukherji, Quijano, and Pinkin, January 9, 2018.
• Oregon: HB 2492, “Relating to redistricting”, has chief sponsors Representative Holvey and Senator Prozanski and regular sponsors Representatives Nosse, Piluso, Sanchez, filed on January 14, 2019.
• Rhode Island: H 5513, “Residence of Those in Government Custody Act”, introduced by Representatives Williams, Vella-Wilkinson, Craven, Caldwell, and Almeida, February 14, 2019. And S 232, “Residence of Those in Government Custody Act”, introduced by Senators Metts, Nesselbush, Quezada, Cano, and Crowley, January 31, 2019.
• Texas: “An Act Relating to the inclusion of an incarcerated person in the population data used for redistricting according to the person’s last residence before incarceration” was filed by Representative Johnson as HB 104 on November 12, 2018.

Washington State passes bill ending prison gerrymandering

Pending Governor Jay Inslee's signature, Washington State will become the fifth state to count incarcerated people at their home addresses during redistricting.

April 23, 2019

On April 23, the Washington state legislature passed a bill ensuring that incarcerated persons will be counted as residents of their home addresses when new legislative districts are drawn in Washington. The bill is now awaiting Governor Jay Inslee’s signature.

The Washington State Constitution states that, for the purposes of voting, people in prison should be counted as residents of their hometowns. However, the Census Bureau counts incarcerated people as residents of the places where they are incarcerated. As a result, when Washington State uses Census counts to draw legislative districts, it unintentionally enhances the weight of a vote cast in districts that contain prisons at the expense of all other districts in the state.

This problem is national, affecting not only Washington but all states. Our past research has found one state house district in Texas, for instance, that was 12% incarcerated people; and 15% of one Montana state house district consisted of incarcerated people imported from other parts of the state.

Washington State is poised to become the fifth state to correct this problem by adjusting Census data to count incarcerated persons at their home address, joining New York, Maryland, Delaware, and California. Nine other states have legislation pending in the current session.

The legislation, passed as SB 5287, applies only to redistricting and would not affect federal or state funding distributions.

“Washington’s legislation recognizes that prison-based gerrymandering is a problem of fairness,” said Aleks Kajstura, Legal Director of the Prison Policy Initiative. “All districts — some far more than others — send people to prison, but only some districts have large prisons. Counting incarcerated people as residents of the prison distorts the principle of one person, one vote. This new law offers Washington voters a fairer data set on which future districts will be drawn.”

Bill to end prison gerrymandering passes second chamber in Washington State

The Washington State legislature is close to passing a bill enabling its redistricting commission to end prison gerrymandering.

by Aleks Kajstura, April 16, 2019

Washington State is poised to become the fifth state to end prison gerrymandering. SB 5287, sponsored by Senators Darneille and Hunt, introduced on January 17, 2019; the bill passed the Senate on March 11, 2019, and the House on April 16, 2019.

Because the bill was amended in the House, it will now go back to the Senate for a concurrence vote. (The House amendment clarified how incarcerated people from out of state or with unknown addresses would be counted.)

The Census Bureau has decided to count incarcerated people in the wrong place again at the next Census, so states are taking action on their own now to avoid prison gerrymandering after the 2020 Census. Washington is one of ten states with bills to end prison gerrymandering pending this session, if the bills pass these states would join California, Delaware, Maryland and New York in ensuring equal representation for their residents.

Bill to end prison gerrymandering clears New Jersey Senate

If it passes, the bill would make New Jersey the fifth state to end prison gerrymandering.

by Aleks Kajstura, February 26, 2019

The New Jersey State Senate passed a bill to end prison gerrymandering on Thursday, with bipartisan support. The identical Assembly counterpart to the bill, A1987, is still pending.

Our New Jersey campaign page has fact sheets, testimony, and other information on the effort to end prison gerrymandering in the state. We’re thrilled to see this bill moving forward after the last legislative session, where the legislation made it all the way to the Governor’s desk, only to be vetoed by former Governor Christie.

The Census Bureau has decided to count incarcerated people in the wrong place again at the next Census, so states need to take action on their own now to avoid prison gerrymandering after the 2020 Census. New Jersey is one of six states with bills to end prison gerrymandering pending this session, if the bills pass these states would join California, Delaware, Maryland and New York in ensuring equal representation for their residents.

As Connecticut prison gerrymandering lawsuit moves forward, six states consider legislation

Bills to end prison gerrymandering are pending in six states' new legislative sessions. Conn. prison gerrymandering challenge passes first hurdle in court.

by Aleks Kajstura, February 21, 2019

On Tuesday, the NAACP’s lawsuit challenging prison gerrymandering in Connecticut survived the state’s motion to dismiss before the U.S. District Court for the District of Connecticut.

While the status quo is challenged in the courts, the state continues to consider a legislative solution. The Government Administration and Elections Committee heard testimony on House Bill 5611 last Friday. (Testimony from the hearing, and other info on efforts to end prison gerrymandering in Connecticut is available on our Connecticut campaign page.)

Connecticut is one of six states with bills to end prison gerrymandering pending this session:

• Connecticut:HB 5611, introduced by the Government Administration and Elections Committee for the January Session, 2019.
• New Jersey: S758, “requir[ing] incarcerated individual from State to be counted at residential address for legislative redistricting purposes”, introduced by Senators Sandra Cunningham and Nilsa Cruz-Perez, January 9, 2018, and A1987, introduced by Assemblymembers Sumter, Mukherji, Quijano, and Pinkin, January 9, 2018.
• Oregon: HB 2492, “Relating to redistricting”, has chief sponsors Representative Holvey and Senator Prozanski and regular sponsors Representatives Nosse, Piluso, Sanchez, filed on January 14, 2019.
• Rhode Island: H 5513, “Residence of Those in Government Custody Act”, introduced by Representatives Williams, Vella-Wilkinson, Craven, Caldwell, and Almeida, February 14, 2019. And S 232, “Residence of Those in Government Custody Act”, introduced by Senators Metts, Nesselbush, Quezada, Cano, and Crowley, January 31, 2019.
• Texas: “An Act Relating to the inclusion of an incarcerated person in the population data used for redistricting according to the person’s last residence before incarceration” was filed by Representative Johnson as HB 104 on November 12, 2018.
• Washington: “Ensuring accurate redistricting”, SB 5287, sponsored by Senators Darneille and Hunt, introduced on January 17, 2019.

State Attorneys General can end prison gerrymandering, most recent Census Director explains

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 will count incarcerated people in the wrong place once again in 2020 Census, continues to distort democracy

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.

Links:

• Census Bureau’s 2020 Census Residence Criteria and Residence Situations (in earlier decades these were called the “residence rules”)
• Census Bureau’s memo summarizing the comments and offering their official response
• A public archive of many of the comment letters submitted to the Census Bureau in 2015 and 2016 on ending prison gerrymandering.
• The 2016 comment letter of the Prison Policy Initiative and Dēmos offering a comprehensive rebuttal of the Bureau’s proposed, and now final, determination.

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