Fixing the count is easier and more necessary than it sounds

It is neither impractical nor illegal to adjust the Census Bureau's count of incarcerated people; and the length of prison sentences is not relevant to state residence law.

by Peter Wagner, April 5, 2010

R.G. Ratcliffe has a great column about prison based gerrymandering in Texas that quotes some common misunderstandings about the issue that I’d like to clarify. First, it is neither impractical nor illegal to adjust the Census Bureau’s count of incarcerated people, and, second, the length of prison sentences is not relevant to state residence law.

It is neither impractical nor unlawful to adjust Census counts

“Wagner said that for the purposes of drawing legislative and congressional district boundaries in 2011, the Legislature should treat prison inmates as “address unknown.” He said at least three Texas counties do not include prison populations when drawing county commissioner precinct lines.

“Republican redistricting expert Eric Opiela said the counties that do that just haven’t been challenged in court. He said the federal “one-man, one-vote” standard requires prisoners to be counted somewhere and it’s impractical to track their residence of origin.”

In theory, it’s not impractical to collect home addresses, as some state prison systems already do it for other reasons. Admittedly, some states don’t do this well and without adequate planning and preparation it’s hard to quickly collect this data directly from incarcerated people. In those cases, doing the next best thing and calling their addresses “unknown” is very feasible.

And while Mr. Opiela is likely correct that Texas counties that exclude prison populations from their redistricting populations have not been challenged in court; counties in other states have successfully withstood scrutiny when rejecting the Bureau’s prison counts. For some citations, see the fact sheet about the authority of states and counties to correct what they see as Census Bureau flaws recently distributed by Brenda Wright of Demos and myself at the recent National Conference of State Legislatures Redistricting Law Seminar.

When I spoke to R.G. Ratcliff last week, I knew of 3 Texas counties that reject the Census Bureau’s prison counts at redistricting. Now I know of 4 more and the details make it clear why these counties have no choice but to modify the Census.

In Concho County, for example, including the prison population would have mean creating a district with no voters and no possibility of representation. The 2000 Census counted less than 4,000 people in Concho County. With 4 County Commissioner districts, each district should have 1,000 people; but the prison was 1,299 people, larger than a single district.

The length of prison sentences is not relevant to Texas’ residence law

Mr. Opeila also cites another common concern:

“You also have many prisoners who will not get out of prison during the 10 years of the census,” Opiela added.

Most incarcerated people are serving very short sentences of less than 3 years, but even that isn’t the point. Under Texas law, people in prison are still residents of their home addresses:

“‘[R]esidence’ means domicile, that is, one’s home and fixed place of habitation to which one intends to return after any temporary absence…. A person who is an inmate in a penal institution… does not, while an inmate, acquire residence at the place where the institution is located.” (Texas Annotated Code §1.015(e).)

Redistricting experts know how complex the process is, so their resistance is to be expected. But fixing prison-based gerrymandering is a lot easier than it might sound; and the legal imperative is quite clear.

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