News and Advance reports more counties in Virginia will be given option to avoid prison-based gerrymandering if Delegate Ingram's bill passes.

by Aleks Kajstura, December 30, 2011

The News and Advance of Lynchburg, Virginia reports on bill HB13, already pre-filed in the state legislature by Delegate Riley Ingram, that would allow the state’s counties to deviate from Census population totals to avoid letting prisons skew the populations used to draw Board of Supervisors districts. Unlike in most states, counties in Virginia are required to use federal Census data when redistricting.

The law currently gives counties where incarcerated people make up more than 12% of the Census population the option to avoid padding the Board of Supervisors district that contains the prison with the prison population.

If the bill passes, the law would be expanded to apply to federal and regional correctional facilities, not just state prisons. It would also let counties such as Southampton County, where a prison accounts for less than 12% of the county’s Census population, but was still forced to draw a district that was more than half incarcerated, the option exclude the prison population when redistricting. It would guarantee that no county would be forced to draw a district where a prison makes up more than 12% of the district’s population.

The amendments will be a welcome change to many of Virginia’s counties. As Pittsylvania County County Administrator Dan Sleeper is quoted stating, “[y]ou want a fair representation of voters in your district.” Even with the amendments, the law would not benefit the residents of Pittsylvania County, because their prison population does not distort their districts enough to meet the statute’s requirements. But the changes would double the number of Virginia counties eligible to avoid prison-based gerrymandering.

In redistricting, local governments struggle with Census treating prison populations as residents of the prison location.

by Aleks Kajstura, December 30, 2011

Prison populations can severely skew local government districts, where the presence of just one large prison can account for a large percentage of a town or county’s population. Although the Census Bureau has made excluding prison populations from local redistricting easier by providing advance group quarters data, a comparison of two recent local papers reveals that local governments still struggle with Census redistricting data to achieve equal districts.

Bon Homme County, South Dakota and the City of Fulton, Missouri both have a large prison within their boundaries. They are currently redistricting following the 2010 Census; attempting to draw each district or ward to have equal population in order to give each resident an equal representation in local government.

But this process is undermined by the Census Bureau’s population data, which include prison populations as if they were residents of the town or county. Fulton, for example, relied on census population data when it drew its city council wards a decade ago and ended up with a ward where about half of the “residents” were actually people incarcerated in state correctional facility located in the ward. This meant that actual residents of the ward have had twice as much influence over city affairs as everyone else in the city. This month, the city is extending the disproportionate influence of residents in ward 2 for another ten years, because, as Fulton’s Director of Administration Bill Johnson puts it, they “take the census at face value and draw lines based on what is provided by the census bureau.”

Bon Homme County is facing a similar problem, but is choosing instead to adjust the population data to give county residents equal power regardless of which district they live in. In order to base the districts on actual resident populations, the city needed to adjust the Census figures to exclude the prison population that the Census counted as Bon Homme residents.

In addition to the technical aspects of making the adjustment, local officials are often uncertain of their legal ability to make such changes – Bon Homme actually considered switching to an at-large election system to avoid these questions. As I explained in a letter to the editor, however, such concerns are unwarranted because state laws usually support this surprisingly common practice.

Still, Fulton and Bon Homme are just two of hundreds of local governments faced with Census data that is unsuitable for creating fair and equal districts. Bon Homme’s Auditor Tammy Brunken sums up their situation: “The feds have created this monster.”

One judge calls our amici brief "particularly impressive and persuasive".

December 27, 2011

On Friday, Dec 23, a federal three-judge panel rejected a lawsuit seeking to overturn Maryland’s landmark “No Representation Without Population Act,” which counts incarcerated people as residents of their legal home addresses for redistricting purposes.

The Maryland law addressed a long-standing problem in the federal Census that counts incarcerated people as residents of the prison location, even though they cannot vote and retain their pre-incarcerated residences. For decades, using unadjusted Census data diluted the vote of every Maryland resident who did not live near the prison complex in western Maryland, and had a particularly negative effect on African-American communities that experience disproportionate rates of incarceration.

The Judges note that the No Representation Without Population Act they upheld was an important Maryland civil rights victory: “As the amicus brief … makes clear, the Act was the product of years of work by groups dedicated to advancing the interests of minorities.” (p. 20)

Other versions of Maryland’s law have since passed in New York, Delaware and California. Maryland was the only state to apply its law to congressional redistricting, and the first state to complete the process after passing a law. The Judges’ ruling that the law was properly passed and fairly implemented will encourage other states to pass similar laws and will hopefully encourage the Census Bureau to make their own changes in where incarcerated people are counted.

The Court issued its ruling late on the Friday before closing for the Christmas weekend, and just three days after a hearing on the evidence and oral arguments on Tuesday. The Court had promised a decision by the end of January, but quickly concluded that the lawsuit was without merit. The case, Fletcher v. Lamone, was a Republican-backed lawsuit that challenged the congressional plan proposed by the Democratic governor of Maryland. The suit raised claims of partisan gerrymandering and racial discrimination against African-Americans. Three of the claims attacked the No Representation Without Population Act as part of that otherwise unrelated lawsuit.

The Prison Policy Initiative, along with our colleagues at the Howard University School of Law Civil Rights Clinic, the ACLU of Maryland, the Maryland State Conference of NAACP Branches, Somerset County Branch of the NAACP, the NAACP Legal Defense and Education Fund, and Dēmos submitted a friend of the court brief to make it clear to the court that the No Representation Without Population Act was protective of minority voting rights. (Our brief did not address the other claims in the lawsuit.) Judge Williams, in his concurring opinion, called our brief “particularly impressive and persuasive.” (p. 49)

The Court upheld the state’s congressional districting plan on all counts. While most of the 55-page opinion concerned other claims, considerable treatment was given to the No Representation Without Population Act.

The Court explained the law and its rationale:

  • Quoting the state’s summary, “the Act is intended to ‘correct for the distortional effects of the Census Bureau’s practice of counting prisoners as residents of their place of incarceration.” The court then goes on to explain:

    “These distortional effects stem from the fact that while the majority of the state’s prisoners come from African-American areas, the state’s prisons are located primarily in the majority white First and Sixth Districts. As a result, residents of districts with prisons are systematically ‘overrepresented’ compared to other districts. In other words, residents of districts with prisons are able to elect the same number of representatives despite in reality having comparatively fewer voting-eligible members of their community.” (p. 9)

  • The Court noted the critical importance of ending prison-based gerrymandering in local redistricting where the impact of a single prison can be the majority of a district. The Court discussed the infamous Somerset County example where a county commission district intended to be majority African-American was unable to elect an African-American for decades because the district contained a large prison and the African-American voting population of the district was too small to elect a candidate of African-American voters’ choice. (p. 9)

The Court explained that states are not required to blindly use the Census for redistricting purposes:

  • Federal law requires Congressional districts to be exactly equal in population, but does not prohibit states from making improvements to the federal census data in establishing that population base. Federal case law allows adjustments to the data used for congressional districts. Although Census data is presumed to be a good starting point, the data can be adjusted to correct for flaws. These adjustments, however, may not be done in “a haphazard, inconsistent, or conjectural manner.” (pp. 12-13)
  • The Court found that The No Representation Without Population Act and its implementation by the Maryland Planning Department meets the standard, writing:

    “The question remains whether Maryland’s adjustments to census data were made in the systematic manner demanded by Karcher. It seems clear to us that they were. As required by the regulations implementing the Act, … [the Maryland Department of Planning] undertook and documented a multistep process by which it attempted to identify the last known address of all individuals in Maryland’s prisons…. This process is a far cry from the ‘haphazard, inconsistent, or conjectural’ alterations the Supreme Court rejected in Karcher.” (pp. 16-17)

Because the No Representation Without Population Act was found to satisfy even the stricter standards applicable to congressional districts, the opinion bodes well for the constitutionality of similar laws that apply to state legislative and local redistricting, where governmental discretion to make adjustments in Census data is even clearer.

The Court addressed several other issues that come up frequently in discussions about ending prison-based gerrymandering:

  • Improving how incarcerated people are counted does not necessitate improving how other groups are counted. Plaintiffs criticized the state for reallocating incarcerated people to their homes, but not doing the same for members of the military or students in dorms. The Court called the assumption that these populations are all similarly situated to be “questionable at best.” The court explains:

    “College students and members of the military are eligible to vote, while incarcerated persons are not. In addition, college students and military personnel have the liberty to interact with members of the surrounding community and to engage fully in civic life. In this sense, both groups have a much more substantial connection to, and effect on, the communities where they reside than do prisoners.” (p.18)

  • States should improve redistricting data where possible, even if it cannot be made perfect. For example, plaintiffs criticized the state’s reallocation because not all incarcerated people return to their exact prior address. The Court ruled:

    “Because some correction is better than no correction, the State’s adjusted data will likewise be more accurate than the information contained in the initial census reports, which does not take prisoners’ community ties into account at all.” (pp.18-19)

  • The Court found that “although the Census Bureau was not itself willing to undertake the steps required to count prisoners at their home addresses, it has supported efforts by States to do so,” quoting the Census Bureau Director’s explanation that the new Advance Group Quarters data would

    “enable states ‘to leave the prisoners counted where the prisons are, delete them from redistricting formulas, or assign them to some other locale.'” (p. 16)

The Court also addressed the main impetus for our brief, namely the plaintiff’s bizarre implication that a law passed with the intent of improving African-American voting rights somehow diluted African-American votes:

“Our review of the record reveals no evidence that intentional racial classifications were the moving force behind the passage of the Act. In fact, the evidence before us points to precisely the opposite conclusion.” (p.19)

The New York Times published a great editorial praising the New York Supreme Court's decision to uphold the law that ended prison-based gerrymandering.

by Leah Sakala, December 22, 2011

New York Times editorial thumbnail Today, the New York Times printed an editorial praising a New York Supreme Court judge’s decision to uphold the law that ended prison-based gerrymandering in New York. The law had been challenged by plaintiffs in the Little v. LATFOR lawsuit.

As the New York Times editorial board observed:

Many counties with large prisons within their borders have rejected the practice of counting inmates as “residents” when they saw how doing so allowed lightly populated towns near prisons to hijack a disproportionate share of political power while diminishing the power of towns that did not have prisons.

Legislators from upstate districts who challenged the law are well aware of what goes on at the county level. But they were desperate to hold on to a process that apportions political power based not on real constituents but on sleight of hand.

In his ruling, Justice Eugene Devine of the State Supreme Court said the plaintiffs had failed to show that the state law was “anything other than rationally based and constitutionally sound.” The plaintiffs, who are appealing, harm the political process by fighting a law that ensures fairer representation.

All the case documents and selected press coverage are available on our Little v. LATFOR page.

HB13 will give any county faced with drawing a district that would be more than 12% incarcerated the option of choosing to not include the prison populations when drawing the districts.

by Peter Wagner, December 21, 2011

A bill that will give more counties in Virginia the option to avoid prison-based gerrymandering has been reintroduced in the House. It passed unanimously last session only to die in a Senate committee.

Historically, Virginia law required counties to base their legislative districts on federal Census data, denying Virginia counties the flexibility exercised by counties in other states to choose the population basis of their required redistricting. The Census Bureau counts people in prison – who by state law can’t vote and are not considered residents of the prison – as residents of the prison location. When used for rural county redistricting, this data can give extra influence to the people who live next to a large prison, and dilute the votes of residents in other districts in the same county.

In 2001, Virginia amended the law, giving counties where incarcerated people make up more than 12% of the Census population the option to avoid padding the Board of Supervisors district that contains the prison with the prison population.

Unfortunately, the 2001 law did not give all counties relief from state-mandated prison-based gerrymandering. For example, Southampton County’s prison population was too small to benefit from the 2001 law, yet the county was still forced to draw a district that was more than half incarcerated. This gave the residents of the district with the prison more than twice the political influence of the residents of other districts in the county.

The bill, HB13, has been pre-filed by Delegate Riley Ingram (R-Chesterfield, Henrico, Prince George, City of Hopewell) and will give any county faced with drawing a district that would be more than 12% incarcerated the option of choosing to not include the prison populations when drawing the districts. The change in the bill is subtle, but it will more than double the number of rural counties eligible to keep prison populations from distorting their districts.

Ideally, the Census Bureau or the state would count incarcerated people at their home addresses for state and local redistricting purposes. Prison and election-reform advocates are urging the Census Bureau to count incarcerated people at home in the next Census, and four states (California, Delaware, Maryland and New York) have passed legislation that applies to state legislative redistricting. But HB13 is an important step in the right direction towards ending prison-based gerrymandering in Virginia.

For more information:

Baltimore Sun op-ed explains how Maryland's law ending prison-based gerrymandering protects minority voting power.

by Leah Sakala, December 20, 2011

Maryland’s No Representation Without Population act ended prison-based gerrymandering throughout the state, but the law is currently being challenged in federal court.

The Baltimore Sun just published a great op-ed defending the law. As Ajmel Quereshi and Athar Haseebullah explain, Maryland’s landmark civil rights law strengthens minority voting power:

While the merits of taking away an incarcerated person’s vote may same fair to some, few think that the communities from which incarcerated people hail should likewise be punished by having their voting power diminished. But that is precisely what happens.

When a person from an urban and largely minority community, such as Baltimore, is convicted, that individual is moved to a prison to serve his or her sentence. These prisons are often located in rural, primarily white, communities. When congressional districts are drawn to ensure there is a roughly equal number of people in each congressional district, prisoners are not counted as a part of their home district, but instead are counted as part of the population at the location of their prison — even though they cannot vote in that district.

This policy drains the political power of the incarcerated individual’s home community and adds to the political power of the area where the prison is located.

Understanding the deleterious effects of this policy, Maryland enacted the No Representation Without Population Act in 2010. By doing so, Maryland finally required that prisoners be counted in the communities from which they came and to which they are likely to return when they regain their right to vote. The No Representation Without Population Act was spearheaded by the Legislative Black Caucus of Maryland and widely supported by state and national civil rights groups, including the Maryland State Conference of the NAACP and the ACLU of Maryland.

The No Representation Without Population Act was implemented to correct injustice. It is perhaps not surprising that those funding this lawsuit are attempting to fool Marylanders. If the act is struck down, conservative districts with large prisons will once again get extra credit for the prison populations — and prisoners’ home districts will receive less than a fair and equal voice in the political process. The result would be minority communities that are drained of their political power — again.

Although everything is in order for the NY redistricting task force to follow the law ending prison-based gerrymandering, members are still digging in their heels. But for how long?

by Peter Wagner, December 15, 2011

Although a lawsuit by Republican Senators seeking to use prison populations to shore up their under-populated districts was thrown out two weeks ago, their efforts to sabotage the law are still with us.

In 2010, Governor Patterson signed a landmark civil rights law requiring that incarcerated people be counted as residents of their home addresses for state and local redistricting purposes. Although most upstate counties already reject the Census Bureau’s prison counts for their own county redistricting, upstate Senators cried foul. And when they retook the majority in the state Senate, the new leadership promptly called for a time-out on implementing the law.

Nine upstate Senators with large prisons filed suit to permanently stop the law. Not among the plaintiffs, however, was Senator Nozzolio, who chairs the Crime Victims, Crime and Corrections committee and who has thousands of prison cells in his district. Instead, in his role as co-chair of the legislature’s redistricting taskforce, he was a defendant and used that position to tell the court that the task force would not defend the lawsuit.

The taskforce even announced that implementation of the law was on hold pending the outcome of the lawsuit. Civil rights groups, good government groups and editorial boards rightly objected to legislators unilaterally pledging to ignore a law before being told to do so by a judge. Under such pressure, the taskforce began to talk about following the law, but the tangible progress hasn’t been forthcoming.

Figuring out where incarcerated people reside and adjusting the Census Bureau data takes time, but it is not difficult. Maryland has a similar law and they implemented their version in a few months. The prisons provided the data a year ago, and all the taskforce had to do was process it. Eventually, the Assembly completed the process on its own back in September, and asked the Senate to approve their work. Instead, Senator Nozzolio raised challenges to the Assembly’s choice of software. And so the just-for-show bickering continued until the Judge threw out the Senate’s legal case and the charade started to collapse.

Given that they claim they intended to follow the law, the lawsuit’s dismissal shouldn’t have had an impact on the taskforce’s scheduled meeting last week to discuss implementation of the law. Instead, running out of legal arguments, they canceled the meeting.

My best guess is that the Senate’s strategy is to run out the clock. At some point the Senate intends to sheepishly look up and try to tell a federal judge overseeing New York’s compliance with the Voting Rights Act, “Gee, we really wanted to implement this civil rights law, but we found it harder than expected and we just ran out of time.”

If that’s their strategy, it could end sooner than they think. In November, a group of citizens asked a federal judge to take over redistricting. They pointed to several reasons why they do not expect the legislature to complete redistricting in time for the primary elections, and the law ending prison-based gerrymandering was a key part of their argument.

I don’t know how the federal judge will rule, but it would be rational for New Yorkers to conclude that the redistricting taskforce is either unable or unwilling to comply with the law. Clearly, if the redistricting taskforce doesn’t get to work, somebody is going to put them out of a job real soon.

Census group quarters data files can now be used to find correctional facilities' locations in Google Earth.

by Leah Sakala, December 14, 2011

I was just working on a research project in which we needed to identify which state legislative districts had prisons in them. The state had released Google Earth files of its district maps, but getting the prison location data in the same format seemed like a tricky task without using expensive and complex GIS software. Luckily we’ve identified a simple solution: plugging the data from our Correctional Facilities Locator 2010 (a national database of correctional facilities counted by the 2010 census) directly into Google Earth.

By adding the relevant state’s Locator 2010 map file as a “Network Link” in Google Earth, I was able to quickly and efficiently pinpoint the locations of all correctional facilities in each state legislative district. Furthermore, each correctional facility entry includes the Census Bureau’s 2010 reported facility population and, when available, the name and type of the facility. Also, for every census block there is a link to detailed demographic information including race and age data for all incarcerated people counted in that block, providing the information necessary for in-depth analyses.

We’ve written up detailed instructions on how you can use this straightforward Google Earth method as well.

Letter to the editor by North Country resident Dan Jenkins clarifies misinformation printed in a recent Plattsburgh Press Republican editorial.

by Leah Sakala, December 14, 2011

In a compelling letter to the editor, Franklin County resident Dan Jenkins clarifies misinformation printed in a recent Plattsburgh Press Republican editorial about New York’s law that ended prison-based gerrymandering:

TO THE EDITOR: The Press-Republican editorial “Inequity must be addressed” of Nov. 29 is a fascinating mix of misinformation.

The manner in which the prison population of New York state will be counted for state and local redistricting is an important public topic. So it is important for the public to be provided with clear and accurate information.

First of all, the editorial incorrectly refers to “congressional” redistricting. The new state law that counts inmates at their homes of record will have absolutely no effect on the realignment of federal congressional district boundaries because those are based on federal census figures, period.

Secondly, the editorial claims that “20,000 inmates in New York’s prisons have no known home addresses.” This unattributed figure was disputed by Peter Cutler, spokesman for the State Department of Correctional Services, as quoted by Joseph Spector, Gannet News Service, in an article published about 10 days ago.

And finally, the editorial seems to suggest that even our counties should include the number of inmates found in state and federal prisons when drawing up local legislative districts or when calculating weighted votes.

Clinton, Franklin and Essex counties have, very properly, decided that prison populations should be deducted from census figures for purposes of local reapportionment. Otherwise, the concentration of inmates in places like Dannemora and Malone can force the creation of county districts with very few actual voters, and this bizarre result will fail to survive a legal challenge in the courts.

If the Press-Republican truly advocates that Clinton, Franklin and Essex counties all reverse course and include prisoner counts for purposes of local reapportionment, then you should make that clear.

Compliments to the Press-Republican for bringing public attention to this issue.

Daniel Jenkins, Tupper Lake

[After the letter was written, but before it was printed, a New York Supreme Court judge ruled to uphold the law ending prison-based gerrymandering, ensuring that incarcerated people in New York will be reallocated to their home addresses for redistricting purposes.]

New York Attorney General Eric Schneiderman’s office has issued a press release praising State Supreme Court Justice Devine’s decision to uphold the law ending prison-based gerrymandering in New York.

by Leah Sakala, December 7, 2011

New York Attorney General Eric Schneiderman’s office has issued a press release praising State Supreme Court Justice Devine’s decision to uphold the law ending prison-based gerrymandering in New York:

“Today’s decision by Judge Devine is a victory for fundamental fairness and equal representation. The court affirmed the legality of counting incarcerated individuals in their home communities for the purposes of redrawing district lines, rather than the districts where they are in prison,” said Attorney General Schneiderman.

“As a lawmaker, I fought to end the practice of prison-based gerrymandering that distorted the democratic process and undermined the principle of ‘one person, one vote.’ This decision affirms and applies a fair standard to the drawing of state legislative districts and makes it easier for counties to do the same by providing them with an accurate data set.”

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