by Peter Wagner, November 24, 2003

map showing New York Assembly District 114 represented by Chris Ortloff. The map shows the borders of the district, its location in the north east corner of the state and the location of the prisons in the district

Counting urban prisoners as rural residents turns the entire idea that districts should be of equal population on its head. In three New York Senate districts, and 10 Assembly districts, at least 2% of the “constituents” are prisoners. The district of upstate Republican Chris Ortloff has the highest percentage of prisoners in the legislature: 6.99%.

The population to be “represented” by Assemblyman Ortloff includes 5,594 Black adults, 82.6% of who are barred by law from ever voting for or against him. By the time these prisoners complete their sentences and are again allowed to vote, they will be back home in a different district.

The prisoners should never have been counted locally for the same reason vacationers are not counted locally: they are only there temporarily.

Importing Constituents: Prisoners and Political Clout in New York

How prison counts change district lines. A graphical explanation using Assemblyman Chris Otloff’s district 114 as the example

by Peter Wagner, November 17, 2003

The experience in Kansas shows that it is practical to adjust the Census data to reflect state residents at their home, rather than Census, addresses. If the federal Census does not change how it counts special populations, it is not necessary for a state to entirely abandon the federal census. Kansas switched from its own state census to the federal census with one exception: Kansas does a special census of students and military personnel so it can change how they are counted in the data used for redistricting. Expanding this practice to prisoners should be quite simple.

The Kansas Constitution requires that redistricting be based on Census data adjusted to:

  • exclude non-resident students and military personnel and
  • transfer in-state students and military personnel back to their home addresses elsewhere in Kansas.

by Peter Wagner, November 10, 2003

While states must redistrict on the basis of actual population, the U.S. Constitution does not require states to use the federal census for its own redistricting:

“Although a state is entitled to the number of representatives in the House of Representatives as determined by the federal census, it is not required to use these census figures as a basis for apportioning its own legislature.”

States are therefore free to use their own census or to correct how the federal census counts prisoners.

Bethel Park v. Stans, 449 F.2d 575, 583 (3rd Cir. 1971)

by Peter Wagner, November 3, 2003

The Census cites its “usual residence rule” as requiring it to count prisoners at the prison. That’s true as far as it goes in regards to prisoners, but the Census and Congress have the power to change this rule, doing so for college students in the 1950s and for military personnel and other groups many times since 1900. Currently, college students living at the college are counted at the college, but prior to the 1950 Census, they were counted at their parent’s home. (Boarding school students younger than college age are still counted at home.)

The Census has been even more inconsistent with overseas military:

With the exception of the 1900 census, the Bureau only began to count overseas military personnel in 1970, allocating them to … their “home of record,” namely the state to which they declared they would return at the end of their service. In 1980, … the Bureau ceased allocating overseas federal employees to particular states. However, the federal employees still considered themselves to be “usual residents” of the United States, and for that reason, among others, the Bureau again reversed its policy in 1990 and allocated federal employees living overseas according to their “home of record.”

The counting of overseas missionaries from the Church of Latter-Day Saints (Mormons) and applying them back to their home states has likewise been changed, counting the missionaries from 1910 to 1940 but not before or after.

The usual residence rule is not an inflexible constitutional mandate. It is a rule within the power of Congress and the Census to modify based on new situations and needs. The usual residence rule should be modified once again so that the Census can more accurately count our nation’s large and growing prison population where they truly reside: with their home communities.

Franklin v. Massachusetts 505 U.S. 788 (1992). Second Amended Complaint, Utah v Evans, Utah D.C. paragraph 32.

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