Skewing Democracy: Where the Census Counts Prisoners

by Peter Wagner, March 28, 2005

New York’s conservative State Senator Dale Volker is glad prisoners can’t vote, because if they did, as he told Newhouse News Service, “They would never vote for me.” Given Volker’s role as the leading defender of the draconian Rockefeller Drug Laws, prisoner opposition to Volker might not be surprising. But that Volker, who represents a mostly white rural part of the state, would care who the state’s mostly Black, Latino and urban prisoners might vote for is, on the surface, surprising. The explanation is that Volker owes his seat to a once-obscure Census Bureau glitch that credits the prison location with the population of prisoners involuntarily incarcerated there. Without credit for the 8,951 prisoners in his district, Volker’s sparsely populated rural district would need to be redrawn.

Our modern conception of democracy — based on the One Person, One Vote rule that requires legislative districts to be redrawn each decade to contain roughly equal numbers of people — is now skewed by the Census Bureau’s outdated method of counting incarcerated people. The Bureau developed the “usual residence rule” for determining where people are counted for the first Census in 1790. While the rule for other special populations like students and military have evolved over time, the method of counting prisoners remains mired in the past. In 1790, this rule might have made sense, because the Census Bureau had a far simpler purpose: to count the number of people in each state, in order to determine their relative populations for purposes of Congressional reapportionment. It did not matter — for purposes of comparing New York’s population to New Jersey’s — whether an incarcerated person was counted at home in New York City or in the remote Attica Prison, as long as they were counted in the right state. Although our society and our uses for Census data have changed radically since 1790, the Census’ method of counting prisoners has unfortunately remained the same.

Some State Impacts

The Census Bureau developed its methods for its own purposes and admits, right in its residence rules, that where it counts some populations “is not necessarily the same as the person’s voting residence or legal residence.” But that is precisely the type of count the states require for internal redistricting. While all states currently rely on Census Bureau data for drawing legislative districts, most states have state constitutional clauses or election law statutes that explicitly define a prisoner’s residence to be the place where she or he lived prior to incarceration. Simply put, states that rely on federal Census data to draw state legislative districts violate not only federal One Person, One Vote requirements but their own state constitutions. Census Bureau data as currently collected is inappropriate for use within states because it does not reflect how these states define residence for election purposes.

The impact of the Census Bureau’s outdated counting method on the fair distribution of political power is aggravated by the radical changes in incarceration patterns since the mid-1970s. From 1980 to 2000, the number of people in prison quadrupled. Alongside a large and growing racial disparity in who gets sent to prison has been a growing trend to locate prisons in rural areas far from the urban communities that most prisoners originate from. In New York, for example, 66% of the state’s prisoners come from New York City, but all of the 43 new prisons built in New York since 1976 have been built upstate. Ninety-one percent of New York’s prisoners are incarcerated in the upstate region of the state. This geographic disparity translates into a clear racial disparity as well: Although the New York State prison population is 82% Black or Latino, 98% of the prison cells are located in State Senate districts that are disproportionately White. Because of these trends, what might have once been a matter of little consequence has developed into a crisis that violates state and federal constitutional protections.

Impact on Home Communities

So while politicians like Dale Volker benefit, the people who pay the highest price for this policy are the Black, Latino and urban communities from which most prisoners come. This counting practice intersects with other punitive electoral policies to great negative effect. Forty-eight states (all but Maine and Vermont) bar prisoners from voting, and 33 states including New York ban parolees from the polls. The burden for this disenfranchisement falls most heavily on minority communities. In New York, 62% of the state population is White, but 82% of the prison population is Black or Latino. Disenfranchisement disproportionately denies these minority voters a voice in government.

As recently argued by the National Voting Rights Institute and the Prison Policy Initiative in a friend of the court brief challenging New York’s disenfranchisement policies, this counting practice illustrates how the effects of disenfranchisement extend beyond those convicted of crimes to affect entire communities not under criminal justice control. Disenfranchisement may be nominally aimed at the “guilty,” but its effects are felt as well by the innocent families and communities from which the prison population is taken, because their legislative representation is diminished by the interplay of felon disenfranchisement laws and the method of counting prisoners for redistricting purposes.

While not all states have yet received the same level of detailed study as New York, the Census counting method creates problems for democracy in virtually every state. Sixty percent of Illinois’ prisoners call Cook County (Chicago) home, yet 99% of the state’s prison cells are outside the County. Los Angeles County supplies 34% of California’s prisoners, yet only 3% of the state’s prisoners are incarcerated there. Philadelphia is the legal residence for 40% of Pennsylvania’s prisoners, but Philadelphia County contains no state prisons.

My “Importing Constituents: Prisoners and Political Clout” report series has applied this regional analysis down to the district level in eight states. In Texas, one rural district’s population is almost 12% prisoners. Every group of 88 residents in that district are represented in the State House as if they were 100 residents from urban Houston or Dallas. Even states with lower incarceration rates see serious distortions in their democratic processes. In one Montana district, 15% of the population is disenfranchised prisoners from other parts of the state.

Some Hopeful Signs of Change

Until recently, this was an unrecognized issue. Tracy Huling discovered the prisoner counting issue shortly before Census 2000 while preparing her groundbreaking 1999 documentary about rural prisons, “Yes In My Backyard”. While this was far too late to make a change in that Census, her work sparked interest in measuring the effects. The first “Importing Constituents” report quantified the distortions in each New York legislative district, but was not completed until shortly before the new district lines were finalized. Since then, the national Prisoners of the Census project at the Prison Policy Initiative has worked to extend this analysis to other states.

The growing interest in this issue suggests that a change in Census counting policy may be possible before the 2010 Census. Historically, the Census Bureau has proven itself very responsive to the needs of its data users, provided such issues are presented early in the Census planning process. The method of counting other special populations has changed numerous times, in each case responding to the country’s changing demographics and needs. When evolving demographics meant more college students studying far from home and more Americans living overseas, the Census policy changed in order to more accurately reflect how many Americans were living where.

Also encouraging is the work of many state-based advocates who are proposing legislation in Illinois and other states to correct how the Census Bureau counts prisoners. If the Census Bureau fails to correct this serious flaw in its data, state officials are discovering that they can take matters in to their own hands to preserve the fairness of their election districts.

This article, originally prepared in February, was published in the March/April 2005 issue of Poverty & Race, the newsletter of the Poverty & Race Research Action Council.

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