by Peter Wagner, January 26, 2004

The entire 7th state representative district [in Florida] … has nine prisons or work camps and 8,443 inmates — better than 5 percent of its total population.

“We worked hard to get these facilities here in our district,” said Bev Kilmer, the Republican who represents the county in the Florida House….

Kilmer thinks it’s fair to count the prisoners as population. Her district already stretches across four complete counties and parts of four more, and without the inmates, she said, it would grow even more ungainly….

The constitution requires political districts to be drawn so that each contains the same number of people. Kilmer is right that under-populated rural districts are geographically large and therefore more difficult for legislators to travel from one end to another to meet constituents. But skewing Census results is not the solution. Providing rural legislators with a travel stipend would be superior to using imported prisoners to dilute the principle of one person one vote.

Quotation source: Jonathan Tilove, Minority Prison Inmates Skew Local Populations as States Redistrict Newhouse News Service, March 12, 2002.

by Peter Wagner, January 19, 2004

[New York] State Senator Dale Volker, who calls himself “the keeper of the keys” for his control of the process that allocates new prisons, said in an interview that legislators competed to get prisons….

Mr. Volker heads the Senate’s Codes Committee, and Michael Nozzolio, another senator with a prison-heavy upstate district, leads the Crime Committee. Both men have been influential in quashing challenges to the Rockefeller drug laws. While senators and their aides deny that fear of losing prison population affects their support for the mandatory sentences, it is appropriate to wonder whether economics plays an indirect role.

The connection between prisons and local economies crops up in other ways. The government counts inmates as residents of their prison’s town, adding clout to upstate communities and taking it away from cities competing for government services. This is especially important during a redistricting year.

New York’s drug-driven prison expansion, while providing jobs to largely white upstate communities, has devastated black and Hispanic neighborhoods in the cities. Though most drug users are white, 94 percent of the people jailed for drug offenses are black or Hispanic. These inmates, their families and communities suffer when the state chooses long prison terms for these offenders rather than drug treatment. In addition, inmates serve their sentences in prisons far from their families, weakening ties that help prisoners stay clean after their release. New York’s drug policies are costly, ineffective and unfair. It would be tragic if reform was postponed further because these policies benefit a few influential communities.

Editorial, New York Times, Full-Employment Prisons August 23, 2001.

by Peter Wagner, January 12, 2004

Paul Street illustrates how Census counts of prisoners at the prisons rather than at home skew the population of Illinois in important ways:

… The Chicago metropolitan area is home to 83 percent of the state’s African-Americans and point of origin for 70 percent of the state’s prisoners. Nearly two thirds (64 percent) of the state’s 45,629 prisoners in 2001 were African-American, a percentage more than four timers greater than blacks’ share of Illinois’ population. Forty-four percent of the state’s prisoners are African Americans from Chicago’s Cook County. Eighteen of the twenty adult correctional facilities constructed over the last two decades in Illinois are located in counties that are disproportionately white for the state. Just four of the state’s twenty post-1980 prison towns have above-average black populations for the state but in three of those this is only because they get to report prisoners as part of their population.

The Political Consequences of Racist Felon Disenfranchisement by Paul Street in The BlackCommentator.

by Peter Wagner, January 11, 2004

On February 10, 2004, a three judge panel struck down Georgia’s legislative redistricting plan. The case is Larios v. Cox. Traditionally, the rule has been that deviations in the size of state legislative districts that are less than 10% do not require a justification. (Greater deviations require justification that a legitimate state interest, such as preserving community boundaries, was served.)

Here, the Court ruled that a deliberate and consistent attempt to dilute the votes of suburban Georgian districts was impermissible under the Equal Protection principle. The 10% rule could not be used to protect districts deliberated designed to skew the weights of different regions in violation of Reynolds v. Sims and the one person one vote principle.

If upheld, this decision may have several powerful effects. First, it would draw more attention to the New York Senate’s legislative districts, which were drawn to deliberately overpopulate urban districts (especially Queens County) and to underpopulate rural districts. Similarly, as I wrote in Importing Constituents: Prisoners and Political Clout in New York, the regional bias implicit in relying on Census Bureau miscounts of prisoners may also come in to question:

The fact that the Queens districts are all equally oversized, right on the maximum border of illegality, suggests that the deviations were not driven by a concern to protect political boundaries, but rather to weigh different communities differently. The spokesperson for Senator Dean Skelos, the head of the senate’s redistricting task force, has defended the population deviations by telling the New York Times: “It’s legal, what more do you want?””[25] Whether such a concerted effort to push the limits of White v. Regester has ever been tested in Court is unclear, but combined with the counting of urban prisoners as rural residents, the problem of unequal district sizes in the senate is even larger than it appears on first glance.

See also Rick Hasen’s analysis on ElectionLawBlog and read the court’s opinion in Larios v. Cox.

by Peter Wagner, January 5, 2004

The use for legislative redistricting of Census counts of prisoners at the prison rather than at home is of critical importance because the number of incarcerated people is now so high. I’ve previously written that prior to the 1990 Census, prisoners were not explicitly excluded from Census counts because incarceration was much less frequent than it is today. But the concern that it is fundamentally unfair to allow an artificial population to skew an otherwise equal distribution of political power is not a new one.

In 1963 the National Municipal League’s Model State Constitution included a provision for excluding prisoners and similar disenfranchised populations:

Section 4.04 Legislative Districts … In determining the population of each district, inmates of such public or private institutions as prisons or other places of correction, hospitals for the insane and other institutions housing such persons who are disqualified from voting by law shall not be counted….

The National Municipal League was correct to identify this problem back when the nation’s prisons held less than 218,000 prisoners. In the 1960s, it appeared that the total prisoner count was declining, and yet this issue was important enough for the organization to include in its model state constitution. Today, with more than a million additional prisoners taken from their homes and counted elsewhere, the need to prevent a census-based shift in democratic decision making is even greater.

Thanks to Professor James Gardner for sharing this information about the National Municipal League.

by Peter Wagner, January 2, 2004

Rosanna M. Taormina has published a great article, Defying one-person, one-vote: Prisoners and the “Usual residence” principle, [PDF] in the University of Pennsylvania Law Review.

The piece concludes:

In this Comment, I have examined the propriety of counting imprisoned persons at their prison address for redistricting purposes. I have suggested that this practice runs afoul of both constitutional and statutory requirements. The Census Bureau’s “usual residence” principle, as applied to disenfranchised prisoners and former prisoners, cannot be squared with the Supreme Court’s one-person, one-vote jurisprudence. The Court has refused to protect prisoners stripped of the most fundamental right accorded citizens of a democracy–the right to vote. It is time for either Congress or the Court to protect law-abiding citizens from state legislatures that unfairly take advantage of the existence of a disenfranchised population when creating “equal” congressional voting districts. “We the People” demand nothing less.

Rosanna M. Taormina, Defying one-person, one-vote: Prisoners and the “Usual residence” principle [PDF] 152 U Pa L. Rev. 431, 459.

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