Prison-based gerrymandering affects political representation, not funding. When messaging matches this reality, legislation gains more support.

by Peter Wagner, June 29, 2011

California’s bill AB420 to end prison-based gerrymandering is rapidly advancing in the Senate. It passed the House and, as of last week, the Committee of Elections and Constitutional Amendments. It is in the Committee on Appropriations now.

I suspect that the bill is advancing so quickly largely because of the very careful messaging from the chief sponsor, Rep. Mike Davis (D-Los Angeles). In this NBC interview he clearly explains why prison-based gerrymandering violates California law.

The video demonstrates that Rep. Davis is taking care to make sure that people do not misunderstand the purpose of his bill:

“Election Code 2025 of the California Constitution indicates that
California’s preference is to have inmates counted, for the purpose of
redistricting
, where they live, not where they’re incarcerated.
Unfortunately, California has been counting prisoners for the purpose
of redistricting
where they are incarcerated. The unintended
consequence—I believe it’s unintended—is that we have some individuals
who represent districts where they have large numbers of prisoners
that are not in their communities.”

He’s exactly right. The Census Bureau counts incarcerated people in the wrong place, jeopardizing the integrity of the electoral process. Although many people associate the Census with the allocation of federal funds, the reality is that the prison miscount has at most a very minimal impact on the distribution of funds. Rep. Davis’s bill is simply not about the money. Instead, the bill would solve prison-based gerrymandering, the largest—and easiest to fix—part of the problem. The result would be fair redistricting and equal political power in the State of California.

Elsewhere, legislative proposals to end prison-based gerrymandering have been derailed by misplaced concerns about funding. In McAlester, Okla, for example, a city discussion about removing the prison population prior to redistricting came to an abrupt standstill after one councilor raised his unfounded concern that federal funding could be affected:

There was a small discussion about amending the charter [which requires that the federal Census population be used]….

That conversation ended when a councilman proposed the possibility of losing federal money.

“We also want to count prisoners so we get our federal money allocation,” said Weldon Smith.

I find that quote particularly frustrating because under the previous charter, the City of McAlester had the flexibility to choose the population basis for redistricting, and it refused to engage in prison-based gerrymandering. And that decision didn’t cost the city a dime, but in the intervening decade too many people forgot about the city’s fair districting history. So now, they are going to give the people who live near the prison 3 times the political clout of people who live in other parts of the city.

A similar story can be seen in Illinois, where much of the opposition to an Illinois bill to end prison-based gerrymandering in also centered on a similar groundless concern. An April 26, 2011 letter to the editor in The Daily Times from a state representative, county chairman, and town mayor—each of whom represent an Illinois prison—clearly illustrates this confusion. In their letter, they admit that the bill “may not seem significant on it’s face,” [emphasis added] but predict that the bill would, “have a dramatic effect on the flow of tax dollars to local communities.”

This claim is entirely false. For example, the largest pot of federal money in Illinois that is based in part on the Census is the distribution of highway funds, and the controlling statute requires that the federal census be used to determine the funding allocation. Changing the data used for state redistricting would not affect the funding distribution because the underlying Census data would not be changed. (For a more detailed explanation, see our blog post).

Skeptics who question this logical conclusion may find a different approach helpful. Two of the above letter writers, the Livingston County Chairman and the Pontiac City Mayor, represent government bodies that rejected the idea of claiming incarcerated people as local residents after the last Census. These local governments refused to draw county and municipal electoral districts that would have given some county or city residents extra representation. By adjusting the Census data for redistricting purposes, they successfully drew fair districts based on actual resident population.

Would the Chairman and the Mayor have rejected the proposal to exclude incarcerated populations when they redistricted 10 years ago if would have cost the county or city funds? Perhaps. But it clearly didn’t, and it won’t this time either.

So where did the Chairman and the Mayor get the ill-founded idea that legislation to end prison-based gerrymandering would impact funding? Some of the blame goes to the Census Bureau, which often uses overly simplistic rhetoric about why the Census is important that implies a linear relationship between Census counts and budgets. But some of the responsibility also belongs with reform advocates who didn’t take sufficient care to make sure that both their supporters and opponents understood that the policy reform being sought addressed politics, not pennies.

In my experience, being clear on this one point can be the deciding factor between the success and failure of a campaign to end prison-based gerrymandering.


Mark Wilson from EmpireWIre has a great cartoon about Senator Little's attempt to bring back prison-based gerrymandering in New York State.

by Peter Wagner, June 28, 2011

Mark Wilson at EmpireWire.com in upstate New York has a great cartoon about the lawsuit seeking to bring back prison-based gerrymandering in New York state:

cartoon about the hypocrisy behind a lawsuit seeking to bring back prison-based gerrymandering in New York State

And this morning, Ashby Jones has a long article in the online edition of the Wall Street Journal about the lawsuit. The article, which is behind a paywall but accessible from some blog links, makes it clear in the final paragraphs that some of the new law’s biggest beneficiaries are the same upstate residents that the Senator-plaintiffs purport to represent:

For instance, in recent years the town of Groveland in Livingston County has derived about 62% of its population from two prisons. The calculation has allowed the Groveland Supervisor to exercise 107 Board of Supervisor votes, rather than the 40 he would be entitled to without the prison, according to Mr. Wagner.


We explain why adjusting the census for redistricting purposes to avoid prison-based gerrymandering will not affect revenue sharing or other grants.

by Peter Wagner, June 22, 2011

We’ve had a number of inquiries recently from officials who want to use the Census Bureau’s Advance Group Quarters Summary File to remove the prison populations prior to redrawing county or municipal district lines, but who faced concerns that drawing fairer districts would cost them state or federal revenue. I thought excerpts from our recent responses would be useful to others looking in to the issue.

From Wisconsin:

You asked if the city or county removes the prison population from the city or county districting totals, would there be an effect on shared revenue funding?

The long answer is no. The Wisconsin shared revenue plan is codified in Wis. Stat. §§ 79.005-79.095. The aid is distributed based on formulas that take population into account. Population is defined by §79.005(2) by reference to population determinations made by the Department of Administration pursuant to §16.96. Pursuant to §16.96 the Dep’t of Administration makes population estimates, based on federal census data and any special census conducted under contract with the Census Bureau. Municipal redistricting data is not within the scope of the meaning of “population” as that word is used in formulas for shared revenue aid distributions.

The shorter version is also no, because shared revenue funding is not dependent upon county/city redistricting data.

From Illinois:

You asked about the impact of excluding the prison population on motor fuel tax revenues which are based in part on the Census. I’ve looked at many parts of the Illinois funding formulas, and this morning again looked at 5 ILCS 505 Section 8. I agree with your research that changing the data used for redistricting would not affect the funding distribution. The funding distribution is based on census data, and whatever data you use for local redistricting would not change the underlying Census data.

In a letter to a different official in Illinois, I explained more of the background:

In general, prison populations have very little effect on the most lucrative formulas that support education or anti-poverty programs because those formulas are highly tailored to the need. Prison populations are not included in how the government calculates “household income” or “poverty” and most of the education formulas are based on the number children in the census or the number of children enrolled in the schools, etc., which the prison populations also do not affect.

I know that this may be surprising, particularly given the Census Bureau’s overly simplistic rhetoric about why it is important for people to fill out Census forms. They are correct, of course, that each person on average represents about $1,400 per year in grants. But the overwhelming majority of this is block grants to the state of Illinois and not to individual municipalities. Prison populations play only a very minor part in the remainder, and none of those calculations are changed by how a county or municipality chooses to draw its legislative lines.


by Peter Wagner, June 22, 2011

Last night at an event in Mattapan, I presented the chairs of the Massachusetts Joint Special Joint Committee on Redistricting with a shapefile showing the showing each correctional facility in the state as it was counted by the 2010 Census. The data is the same as the table I presented in my May 31 testimony in Greenfield Massachusetts, but the format is different as it can be imported directly in to redistricting software. The purpose of the data is to make the legislature aware, when drawing State Senate and State House districts, of which populations were incarcerated in a particular block but were actually residents of other parts of the state.

I’m making the file publicly here in the hopes that it will be of use to redistricting advocates in Massachusetts. (Advocates in other states can use our national shapefile and our correctional facility locator.)

For more detail about how and why the legislature should take the prison populations in to account when drawing the districts, see my May 31 testimony How Massachusetts can avoid prison-based gerrymandering in three simple steps.


In this video clip, Linda Meggers explains to Georgia City Attorneys how to avoid prison-based gerrymandering.

by Peter Wagner, June 20, 2011

On April 25, Linda Meggers, the former director of the Georgia Reapportionment Services Unit, gave a presentation at the Georgia Municipal Association training session on Redistricting Mechanics. She reviewed the relevant state and federal law, including a detailed discussion of the Voting Rights Act in her briefing for city officials.

The very first question asked at the session was: “What about prisons?” Linda Meggers’ excellent answer about how and why to adjust the Census and avoid prison-based gerrymandering is in the clip below:

City officials who need assistance identifying prison populations in the redistricting data may find our Correctional Facility Locator, or the shapefile we made from the Census Bureau’s Advance Group Quarters Summary File helpful.


Back to basics coverage of the redistricting process and the issue of prison-based gerrymandering, as the nation starts to redistrict.

by Aleks Kajstura, June 13, 2011

A few recent news stories provide a great introduction to the redistricting process, and prison-based gerrymandering specifically:

The National Radio Project’s Making Contact – June 11 edition is a great introduction to the redistricting process in the United States, and some of the issues that it creates. The program includes a segment on prison-based with Peter Wagner.

New America Media did an interview with Dale Ho, from the NAACP’s Legal Defense Fund, which provides a slightly more advanced introduction to redistricting and prison-based gerrymandering. New American Media also published a written piece by Kenneth J.Coooper that summarizes the legislative efforts to end prison-based gerrymandering thus far and gives an overview of current developments.


City Law Director tells City Council they should decide whether to avoid prison-based gerrymandering when drawing city council districts.

by Peter Wagner, June 10, 2011

The Mansfield News Journal reports

Mansfield to reconfigure wards

City must determine whether to omit nonvoting prisoner population from 5th Ward

by Al Lawrence

MANSFIELD — The city will have to reconfigure ward boundaries as a result of the final population figures from the 2010 U.S. Census….

[Law director Dave Remy] told council before it redraws ward boundaries it must decide if it wants to include the inmate populations at the Mansfield and Richland Correctional institutions. He said the 5,500 inmates in the two institutions account for 60 percent of the population in 5th Ward.

“That’s fifty-five hundred people who are locked up and disenfranchised and could not vote if they want to,” Remy said. “There has been a movement in the state that cities with prisoners should consider taking prisoners out of ward representation.”

He pointed out that Mansfield has the largest prisoner population of any ward in any city in Ohio. Remy said taking inmates out of the reconfiguration formula would not affect federal programs…..

fact sheet thumbnail

I assume that the City of Lima will again refuse to pad one city council district with the prison population, but no word yet on whether Marion, Marysville, and Youngstown are considering avoiding prison-based gerrymandering.

For more, see our fact sheet Prison-Based Gerrymandering in Ohio Cities.


Bay State Banner reports on creativity needed to end prison-based gerrymandering in Massachusetts now.

by Aleks Kajstura, June 9, 2011

If Massachusetts wants to stamp out prison-based gerrymandering within its borders a piecemeal approach is required, as reported by this week’s edition of the Bay State Banner.

Last year, New York, Maryland and Delaware passed laws to correct the possible violation of the one person, one vote principle and adjust census data, which the states are using in redrawing legislative districts based on the 2010 Census….

In Massachusetts, the Legislature cannot adopt similar legislation without amending the state constitution, the only one in the country that indisputably requires the census be used in state redistricting.

Still, activists have figured out creative strategies to limit the distortion of voting power and are lobbying the Special Joint Committee on Redistricting to embrace them.

The key to their strategies is the limited flexibility that the U.S. Supreme Court allows in how many people live in each district. That number can vary as much as 5 percent above or below what would be an exactly equal amount in every district.

Two activists [Peter Wagner of the Prison Policy Initiative and Brenda Wright of Demos] have urged the redistricting committee to give legislative districts with prisons up to 5 percent more residents, and those districts where many prisoners last lived up to 5 percent fewer residents….

Wright recommended the Legislature pass a resolution calling for the Census Bureau to change the way it counts prisoners, an adjustment that would come too late to affect the current round of redistricting. She also urged the Legislature to start the long process of amending the constitution in case the federal agency does not take action.

Wagner said it would be better for Massachusetts and the rest of the country if the Census Bureau did change its method of counting prisoners.

“I think the ideal place for a fix to happen is at the Census Bureau,” Wagner said in an interview. “It would be easier on states and local governments if they did it.”


Two Mass. bills pass, and a third one introduced, to free towns from having to use Census counts of incarcerated people to create additional expensive and unnecessary voting precincts.

by Peter Wagner, June 3, 2011

Two Massachusetts bills I blogged about in April and May passed the legislature yesterday, and a similar bill applying to a third town was introduced last week.

The two passed bills allow the towns of Lancaster (H03440) and Harvard (H03439) to exclude the prison population when complying with state law that requires the creation of additional voting precincts when a town reaches a Census population of 6,200 and again at 8,000.

In Massachusetts, precincts are administrative units that determine where you vote. Although the Census Bureau counts people in prison as residents of the town where the prison is located, incarcerated people are either barred from voting or are required to vote via absentee ballot in their home districts. Therefore, there is no reason to force towns that host prisons to bear the extra administrative costs of creating additional precincts to serve voters who don’t exist.

The third introduced bill, H03468 , applies to Middleton and would exempt that town from having to create a third precinct to accommodate the population counted by the Census Bureau at the Essex County Correctional Center, but none of whom will be standing in line to cast ballots in local precincts.

These three bills should pass and be signed by the governor because they are good for these towns and don’t have any negative effects for the home communities of incarcerated people; but the best solution, of course, would be for the Census Bureau to count incarcerated people in the correct location: at home.


Bill to end prison-based gerrymandering in California passes the Assembly, moves on to consideration by the Senate.

by Aleks Kajstura, June 1, 2011

California’s bill to end prison-based gerrymandering (AB 420) just passed the Assembly, it now moves on to the Senate.

The bill, introduced by Assemblymember Davis, had previously been approved by the Assembly Committee on Elections and Redistricting. The votes on the bill and discussions of prison-based gerrymandering in California clearly illustrate that this is not a partisan issue. The Los Angeles Sentinel reports that the bill would clarify California electoral law and ensure equal districts regardless of prison populations. Organizations that support the bill include: NAACP Legal Defense Fund, Lawyers Committee for Civil Rights, the League of Women Voters, Drug Policy Alliance, Legal Serves for Prisoners with Children, Friends Committee on Legislation, the Prison Policy Initiative, the Greater Sacramento Urban League, the Advancement Project, the Ella Baker Center for Human Rights, First AME and the California Black Pastors Association.

While the State works to end prison-based gerrymandering in state redistricting, California counties are taking action in local redistricting efforts. Imperial County studied the issue and decided not to include prison populations in its redistricting data. A resolution to prohibit the use of prison populations in redistricting was just recommended by a County Supervisor in Madera County.



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