Press Release: Court Should Reject Lawsuit - Voting Rights Groups Support Improved Rules for Counting Incarcerated Persons

April 6, 2011

Voting Rights Groups Support Improved Rules for Counting Incarcerated Persons

Contact: Tim Rusch, Demos, 212 389-1307
Peter Wagner, Prison Policy Initiative, (413) 527-0845, (413) 923-8478
Anna Pycior, Demos, (212) 389-1408

April 6, 2011–Demos and the Prison Policy Initiative, two national pro-democracy groups, expressed serious objections today to a lawsuit filed in state court that seeks to reinstate the discredited policy of miscounting incarcerated New Yorkers when state and local legislative districts are redrawn this year.

Landmark legislation, signed into law by Governor Paterson last August, corrected a long-standing miscount of incarcerated populations and directed that these individuals be counted as residents of their home communities for redistricting purposes.

The prior practice of padding legislative districts with prison populations artificially enhanced the weight of a vote cast in those districts at the expense of all districts that did not contain a prison. The lead plaintiff, Senator Betty Little, has 13 prisons in her district.

“Senator Betty Little filed suit this week to revive a legal fiction, claiming that individuals imprisoned in her district are members of the local community and should be counted there when it comes to drawing state and local legislative districts. Senator Little’s attempt to inflate the population of her district with more than 10,000 incarcerated, non-voting residents from other parts of the state will dilute the votes cast in all other districts.” said Peter Wagner, Executive Director of the Prison Policy Initiative.

“The senator’s action also flies in the face of local practice. For many years, all of the counties represented by Senator Little, and most of the counties represented by her co-plaintiffs, have removed the prison population when drawing local legislative districts. This lawsuit threatens to overturn this common sense practice and force local county governments to draw incredibility distorted districts.

The law being challenged contains provisions to help New York correct past distortions in representation which include:

  • Seven of the current New York State Senate districts meet minimum population requirements only by claiming incarcerated people as residents.
  • Forty percent of an Oneida County legislative district is incarcerated, and 50 percent of a Rome City Council ward is incarcerated, giving the people who live next to the prisons more influence than people in other districts or wards.

“The arguments in this lawsuit are clearly wrong. Incarcerated persons do not make their ‘home’ in the prison town in any meaningful sense; they are not permitted to interact with the prison town and they almost always return to their pre-incarceration community upon completion of sentence, on average within 34 months,” said Brenda Wright, Director of the Democracy Program at Demos.

The miscount of incarcerated individuals called for in the lawsuit violates the fundamental one-person, one vote principle of our democracy and contradicts the New York Constitution, which clearly states that a prison is not a residence,” said Wright. “The plaintiffs here are wrong on the facts and wrong on the law. Their suit should be dismissed.”

One of the counties represented by Senator Little, Essex County, passed a local law in 2003 explaining why treating prison populations as “residents” of the county distorts fair representation:

“Persons incarcerated in state and federal correctional institutions live in a separate environment, do not participate in the life of Essex County, and do not affect the social and economic character of the towns in which … the correctional facilities … are located.

“The inclusion of these federal and state correctional facility inmates unfairly dilutes the votes or voting weight of persons residing in other towns within Essex County….

“The Board of Supervisors finds that the population base to be utilized in and by the plan apportioning the Essex County Board of Supervisors should exclude state and federal inmates.”

The Prison Policy Initiative and Demos are partners in a national project to end prison-based gerrymandering, advocating for the Census Bureau and state and local governments to count incarcerated persons at their home residences. New York, Maryland and Delaware each passed legislation in 2010 to correct the way incarcerated people have been counted.

And while the Census Bureau did not have time to consider counting incarcerated people at home for the 2010 Census, in the next few weeks the Census Bureau will be publishing an Advance Group Quarters Table. The data will allow states and local governments to more readily identify prison populations in the redistricting data, and choose to either remove the prison populations or combine those counts with their own data to count incarcerated people at home.


McAlester's new City Charter may inadvertently force the City to engage in prison-based gerrymandering.

by Aleks Kajstura, April 6, 2011

McAlester’s new City Charter may inadvertently force the City to engage in prison-based gerrymandering. McAlester had previously excluded the prison population located within City limits when drawing wards, this allowed them to give equal representation to all McAlester residents in the City Council. Although the Census Bureau is about to provide Advance Group Quarters Data to make the population adjustment process easier for the next decade, the Ward Commission is interpreting the new City Charter as disallowing any adjustment of the original data provided by the Census.

Wes Carter, writing for the McAlester News Capital, explains:

The result of adding inmates to city wards will have drastic effects on the make-up of the city. The prison population at the moment is scheduled to be located in ward 4. Inmates will make up approximately two-thirds of the population. …

When disbursed equally, each city council member will represent 3,333 people. However, Ward 4, which is where both prisons are located, will have 2,000 inmates and 1, 333 citizens in its district. The Ward 4 council member will represent 39 percent of what the other council members represent; however, he will have the same amount of responsibility.…

“It seems this wouldn’t be fair,” said Ward 4 Councilmen Robert Karr. “Prisoners can’t vote so I can’t really represent them.”

Not only would it be hard for an elected official to represent inmates, the smaller voting block would dilute the votes of voters in the other five wards.

“I think it is fair the way we have done it in the past,” said Karr. “Hopefully common sense will prevail.”

The two quoted stories by Mr. Carter were both published in their entirety only in print editions of the McAlester News Capital:

City ward boundaries to be re-drawn after census, March 24, 2011
Feds: Prison populations not required in McAlester ward re-districting, March 30, 2011

Somebody wants to bring prison-based gerrymandering back to New York. But who? It's not upstate counties or upstate newspapers.

by Peter Wagner, April 5, 2011

Somebody wants to bring prison-based gerrymandering back to New York. But who?

It’s not the 13 upstate New York counties that have historically rejected the idea of using prison populations to pad some legislative districts with prisons at the expense of all other districts. In fact, one of those counties even passed a local law declaring that:

“Persons incarcerated in state and federal correctional institutions live in a separate environment, do not participate in the life of Essex County and do not affect the social and economic character of the towns…. The inclusion of these federal and state correctional facility inmates unfairly dilutes the votes or voting weight of persons residing in other towns within Essex County….”

It’s not the editorial board of the Times Herald-Record in Orange County New York which editorialized that:

“… a politician should be embarrassed to claim that people held in prisons should count as constituents.”

And it’s not the editorial board of the Observer-Dispatch in Oneida County, which was outraged to learn about the extent of prison-based gerrymandering in local city and county government:

“In January, it was reported that the 6,000-plus prison inmates at Oneida County’s four prisons are factored into population totals for county legislative districts in Marcy and Rome. Meanwhile, in the city of Rome, nearly half the people in the Second Ward are prisoners. That means a non-prisoner in the Second Ward has twice the clout on the Common Council over a resident in another part of the city. That’s wrong.”

The paper ended their editorial with an unsuccessful call for a particular important person to support New York’s landmark law to end prison-based gerrymandering.

So if the upstate county governments think prison-based gerrymandering is a bad idea, and if the upstate editorial boards think prison-based gerrymandering is unfair, is there any group that may have a different perspective?

The video below explains which group sees enough self-interest in prison-based gerrymandering to want to file a lawsuit to bring back the repugnant practice:

Mississippi counties face complex gerrymandering problems unless they exclude prison populations when redistricting.

by Aleks Kajstura, April 4, 2011

According to a recent article by Molly Davis, for the Associated Press, Mississippi counties are currently redistricting their local governments, and trying to avoid prison-based gerrymandering.

In Mississippi, prisons are concentrated in the Delta, an area with a significant black population. It is unclear whether most counties are following the state attorney general’s instructions to exclude inmates in redistricting or the census’ policy of including them in the count, but such decisions affect whether counties are in compliance with the 1965 Voting Rights Act.

In Mississippi, prison-based gerrymandering takes on a new twist:

Rep. Tommy Reynolds, D-Water Valley, who chairs the House Elections Committee, said that including prison populations in county redistricting tallies actually helps to preserve voting strength in those districts.

This argument provides the basis for criticism of “prison-based gerrymandering” in the northeastern United States, where the problem tends to inflate the population of the largely white communities where the prisons are located, at the expense of the low-income city neighborhoods where many of the inmates come from.

In Mississippi counties such as Leflore and Sunflower, which have prisons as well as a significant black population, Rhodes said the problem is more complicated.

He said that drawing a district that includes a large number of non-voting black prisoners could artificially inflate the black population, creating a phantom minority-majority district while actually “cracking” the voting black population, or dividing them into separate districts, thus diluting their real voting strength. Rhodes said that such action would appear to comply with the Voting Rights Act on paper, but in reality would put counties at risk for a lawsuit.

“They could be taken to court for excluding (prisoners) in redistricting plans, but if they include them they have to draw them in such a way that they don’t include them in a marginal minority district,” he said.

Mike Sayer, of Southern Echo, summarizes:

“When a large prison population is included in a district it can create the illusion of a majority-minority district,” said Sayer. “If most of those who are incarcerated are minorities and unable to vote then you may have a majority-minority district on paper, but perhaps not in reality.”

Although some lawmakers assume that “Mississippi would risk losing federal dollars by excluding the prison population from those calculations,” no federal (or state) aid is based on redistricting data. Therefore, a county that excludes prison populations from their district totals faces no risk of losing state or federal aid.

Mississippi counties that follow the advice of the Attorney General and exclude prison populations from local redistricting data can easily solve complex gerrymandering problems and draw districts that are closer to the principles of “one person, one vote.”

Manning Marable helped put prison-based gerrymandering on the map.

by Peter Wagner, April 2, 2011

Manning Marable passed away last night.

Manning Marable, a leading scholar of black history and a leftist critic of American social institutions and race relations, whose long-awaited biography of Malcolm X, more than a decade in the writing, is scheduled to be published on Monday, died on Friday in Manhattan. He was 60.

Manning Marable, Historian and Social Critic, Dies at 60, by William Grimes, New York Times, April 1, 2011.

Manning Marable helped put what we now call prison-based gerrymandering on the map by inviting me to meetings at his Institute for Research in African-American Studies at Columbia University in 2002 and to speak at the main plenary panel at the Africana Studies Against Criminal Injustice Conference in 2003. His early endorsement made of our later successes possible.

He will be missed.

Stay Informed

Get the latest updates:

Share on 𝕏 Donate