We joined our colleagues in partner organizations to urge the Massachusetts Legislature to take a stand for electoral fairness by urging the Census Bureau to end prison gerrymandering.

by Leah Sakala, March 28, 2013

The message is loud and clear: Massachusetts wants to see an end to prison gerrymandering.

Yesterday afternoon Prison Policy Initiative Legal Director Aleks Kajstura and I attended a hearing before the Massachusetts Legislature’s Joint Committee on Election Laws to testify with a great group of colleagues in support of Resolution S 309/H 3185, a resolution urging the Census Bureau to end prison gerrymandering by counting incarcerated people at their home addresses.

Representative Jim O’Day kicked off the testimony in support of the resolution, explaining why it’s important that the people who are incarcerated in his district be counted at their home addresses in the next Census. Aleks spoke and submitted joint testimony on behalf of Prison Policy Initiative and Dēmos, and she was joined by Pam Wilmot of Common Cause Massachusetts, Professor Carroy Ferguson of UMass Boston, Kevin Peterson of the New Democracy Coalition, Marinella Blake of EPOCA, Sunni Ali of the Boston Workers’ Alliance, Rahsaan Hall of the Lawyers’ Committee for Civil Rights and Economic Justice, Sara Brady from MassVOTE, and Gavi Wolfe from the ACLU of Massachusetts (testimony).

We also submitted a joint letter from 24 Massachusetts-based organizations calling on the Joint Committee of Election Laws to pass the resolution, and Leah Aden of the NAACP LDF submitted a memo of support for the resolution. As we note in the joint letter,

The Census Bureau considers state and local redistricting to be the second most important use of census data, and actively solicits feedback from states on their experiences using Census data for reapportionment. The Massachusetts Legislature’s opinion on this matter carries great weight with the Census Bureau, so we urge you to pass Resolution S 309/H 3185.

As always, we’ll keep you posted with this blog and our Massachusetts organizing page as soon as updates are available!

Aleks Kajstura testifies in support of calling for an end to prison gerrymandering

Prison Policy Initiative Legal Director Aleks Kajstura testifies in support of calling for an end to prison gerrymandering

Governor signs HB1339, changes law that required some counties to dilute the votes of county residents who did not live adjacent to a prison.

March 20, 2013

For immediate release: March 20, 2013

Virginia New Majority: Deshundra Jefferson, (347) 834-3035
Prison Policy Initiative: Leah Sakala, (413) 527-0845
Dēmos: Lauren Strayer, 212-389-1415 or lstrayer@demos.org

Governor signs HB1339, changes law that required some counties to dilute the votes of county residents who did not live adjacent to a prison

Virginia Governor Bob McDonnell on Monday signed HB 1339, which ends a state requirement that forced some local governments to engage in prison gerrymandering. The new law lifts limitations on which counties, cities and municipalities could exclude incarcerated populations for redistricting purposes. Rural counties that host prisons find that relying on the Census Bureau’s counts to draw districts can result in a single prison being the majority of a district, even though the incarcerated population is denied the right to vote. This distorts representation by giving disproportionate influence to the residents of the prison district and diluting the votes of residents of all other districts. The problem is often called “prison gerrymandering.”

“HB1339 caps a twelve-year effort to roll back a unique provision of Virginia law that barred local governments from making adjustments to the federal Census data,” said Peter Wagner, Executive Director of Prison Policy Initiative and a national expert on prison gerrymandering.

Virginia’s law now matches that of most states.

“Most states give local governments the choice to avoid prison gerrymandering, and a few states like Colorado and Michigan actually prohibit local governments from using Census Bureau prison counts to enhance the votes of some residents to the detriment of other residents,” said Brenda Wright, Vice-President for Legal Strategies at Dēmos.

“Ideally, the Census Bureau would tabulate incarcerated people where they reside, at home, so that all districts could be drawn more fairly” said Tram Nguyen, Deputy Director of Virginia New Majority, noting that incarcerated people can’t vote in Virginia but remain legal residents of their homes while they are incarcerated.

“But Virginia has today given rural counties the option to fix an obvious flaw in the decennial Census and draw fairer districts in the future. I expect most counties will take this opportunity when they next redraw their lines,” Nguyen added.

About the Virginia law

Prior to 2001, Virginia law required local governments to redistrict based on “figures … identical to those from the actual enumeration conducted by the United States Bureau of the Census” with no flexibility provided to correct for any inequities that might cause.

In 2001, the legislature amended the law to give some counties — those whose total population was at least 12% incarcerated — the option to exclude the prison population. This change freed some counties from the impossible situation of drawing districts that were entirely incarcerated, but still required counties like Southampton to draw a district where more than half of the population is in prison. Residents of that one district received twice the influence over Southampton County affairs as residents in other districts without the prison.

Efforts to amend the law in time for the 2011 redistricting were unsuccessful, but in 2012, the legislature unanimously passed legislation to give any jurisdiction faced with drawing a district that would be 12% or more incarcerated the option to adjust the Census and remove the non-resident prison population. The newest amendment extends the choice to avoid prison gerrymandering to all counties, cities and towns that contain correctional facilities.

HB 1339, sponsored by Delegate R. Lee Ware, Jr. (R-Powhatan) passed the House unanimously on January 23, and with bipartisan support in the Senate on February 15. The bill applies only to county, city or municipal redistricting, and does not apply to funding or other uses of Census data, including state redistricting.

National context

“My research has shown that the vast majority of counties and municipalities that host prisons reject prison gerrymandering. The majority of the exceptions are in states where state law is believed to require the absurd result of prison gerrymandering. Virginia fixed the problem with their state law. States like Minnesota, Tennessee and Wisconsin should follow Virginia’s lead,” said the Prison Policy Initiative’s Peter Wagner.

“By signing HB 1339, Governor McDonnell put Virginia in firmly in the camp of states that have rejected prison gerrymandering and helped ensure an equal voice for all citizens,” explained Brenda Wright of Dēmos. “Four states have recently passed legislation that ended prison gerrymandering for state legislative redistricting. The legislation in California and Delaware applies just to state legislative districts, but Maryland and New York both passed comprehensive legislation that applied to both state and local redistricting. Virginia has taken an important first step by freeing local governments from a state requirement at odds with the constitutional principle of ‘One Person One Vote’.”


H5283/S0147 would require that incarcerated people be reallocated to their home addresses for redistricting purposes after the 2020 Census.

by Leah Sakala, March 14, 2013

Earlier this week, Peter and I headed down to the Rhode Island State House to testify before the Rhode Island House Committee on Judiciary in support of H5283/S0147, Rep. Anastasia Williams’ bill to end prison gerrymandering.

The issue of prison gerrymandering is especially dramatic in Rhode Island because the state’s prisons are all concentrated in just one area. Currently, nearly 15% of one State House District in the Cranston area is made up of incarcerated people from other places. This means that 85 people in that district have as much say in state politics as 100 people in any other district.

The proposed bill would require that incarcerated people be reallocated to their home addresses in the data used for Rhode Island’s next reapportionment cycle (much like the bills that were passed and successfully implemented in New York and Maryland).

Our colleagues John Marion from Common Cause Rhode Island, Steven Brown from the Rhode Island ACLU, and Derry Riding of the League of Women Voters of Rhode Island testified in support of the bill as well. Members of Direct Action for Rights and Equality and Open Doors also expressed their support for the legislation.

For pictures from the hearing, check out our Facebook album!Testifying in support of ending prison gerrymandering in Rhode Island

By removing the prison population for redistricting purposes, Granville can draw fair districts that contain equal numbers of actual residents.

by Leah Sakala, March 12, 2013

A few months ago, we wrote a post about why the new county commissioner districts in Granville County, North Carolina are such a clear example of how prison gerrymandering hurts local government democracy. But now, fortunately, the county has second chance to fix the problem.

The opportunity arose when county officials realized that the 2010 Census data they relied on to draw their new districts had counted a federal prison that straddles the county line entirely within Granville County by mistake. Now that county officials have realized the Census Bureau’s error, they have decided to redraw the commissioner and school board districts with population data that does not include the portion of the prison population that is outside Granville County. But there’s an even simpler solution that leads to a fairer result: they can end prison gerrymandering by simply removing the prison population altogether from the data used to draw the revised districts.

Under the county’s current plan, some Granville County residents get twice as much political influence as others simply because they live near the prison. By removing the prison population for redistricting purposes, Granville can draw fair districts that contain equal numbers of actual residents. Granville should take this opportunity to join the more than 200 other local governments across the country that have decided to prevent prison counts from unfairly skewing local democracy.

Excluding the federal prison population for redistricting purposes would be step towards minimizing the harm of prison gerrymandering in Kentucky.

by Peter Wagner, March 11, 2013

It looks like the Kentucky Legislature will wrap up without passing a redistricting plan — their proposed map was declared unconstitutional last year — but a plan that passed the House deserves some comment on this blog because it takes an important, if partial, step towards reducing the harm of prison gerrymandering.

This effort is not to be confused with BR219 which would have required redistricting on the basis of Census Bureau data corrected to tabulate incarcerated people at their homes of record. Under BR219, the Department of Corrections would collect home of record information as people enter the prison system and the state would created a redistricting data set by adjusting the Census data accordingly. The bill would then have required both state and local governments to use that adjusted data to draw districts in 2021 I testified in support of BR219, and I received bi-partisan support from the Kentucky General Assembly Task Force on Elections, Constitutional Amendments, and Intergovernmental Affairs.

Given that the legislature is already years-late to pass a new map, it wasn’t possible to determine the home addresses of people in prison like Maryland and New York did and completely eliminate prison gerrymandering. Last year, we urged some states in the midst of redistricting to, as an interim solution, consider the incarcerated populations to be “at-large” inhabitants of the state rather than as residents of districts where they lack legal residence. In this way, the state can eliminate the bulk of the harm of prison gerrymandering — the vote enhancement in districts that contain prisons — in a very short amount of time.

One of the House’s proposed maps took a small step forward in this vein: The House proposed to remove the federal prison population when redistricting. The House justified this on the basis that federal prisoners are overwhelmingly from out-of-state, so it didn’t make sense to credit them to a handful of Kentucky Census blocks where they did not actually reside.

The Senate — which hasn’t yet proposed their own map — cried foul, arguing that it was improper for the state legislative districts to be drawn with different data than that used for Congressional districts. Some of the commentary explained that, there is extensive precedent for using different data to drawn Congressional districts, and I’d point to New York’s law to end prison gerrymandering and Kansas’ adjustment of the military and student population. But the most useful explanation of the principle that different levels of government can use different datasets to draw districts might be right in Kentucky: The McCreary County Fiscal Court refused to use the United States Penitentiary population when drawing its Fiscal Court districts.

McCreary County evaluated the Census’ data and concluded it was a bad idea to blindly rely on data that did not accurately describe the county’s residents. The county saw that drawing districts based on unadjusted data would dilute the votes of everyone who didn’t live next to the prison.

When the Kentucky Legislature drew the Congressional districts, however, they didn’t think about the matter and drew districts that diluted the votes of most state residents to the benefit of a few. Kentucky cannot achieve consistency across all levels of government until the next redistricting cycle, but the legislature can still pick the better choice between approaches already taken in the state.

Although it sounds like Kentucky won’t be passing a redistricting map this session, when the time comes, I would suggest following the rural county that put some thought in to what data to use over using data that the state now knows is not as good as it could be.

Bonus: There is a case from last decade out of Oregon (Hartung v. Bradbury) where the Supreme Court of Oregon instructed the Secretary of State that he was in fact *required* to correct obvious Census Bureau mistakes, in this case a federal prison counted in the wrong spot. The Court explained that “the Secretary of State incorrectly has assumed that, in determining the population of a district in the face of an admitted error in the census data, he nonetheless must rely solely on official census data. (332 Ore. 570, 598; 33 P.3d 972, 987.) The Court ruled that the state cannot use Census data it knows to be incorrect.

Oregon House Committee on Rules held public hearing on redistricting bills, City Club of Portland supports bills to end prison gerrymandering .

by Aleks Kajstura, March 7, 2013

Prison gerrymandering was addressed at an Oregon House Committee on Rules public hearing [audio .ram file] on Monday. The hearing covered two bills and a constitutional amendment that together would establish a redistricting commission. One of the bills, HB 2686, would also end prison gerrymandering in the state. HB2868 was introduced with bi-partisan sponsorship by Representatives Berger and Bailey.

The City Club of Portland testified in support of the bill. The legislation follows the recommendations of the Club’s report analyzing Oregon’s redistricting process [PDF], as well as Common Cause Oregon’s report, both released last year. The reports critique the way prison populations were handled in redistricting, and the City Club’s report specifically called for that session’s legislation to end prison gerrymandering (SB 720) to be considered again this session. SB 720 is back for consideration this year as SB 516, sponsored by the committee on General Government, Consumer And Small Business Protection.

Vigo County Indiana faces drawing a district where 13% of the population is actually people incarcerated at the Terre Haute Federal Correctional Complex.

by Aleks Kajstura, March 6, 2013

A Vigo County resident, with the help of the ACLU of Indiana, recently filed a lawsuit to force the county to reapportion their voting districts. Population shifts in the two decades since the county last redistricted result in significant population differences between the districts. One of the population changes in Vigo County is the expansion of the federal prison complex, but regardless the districts need to be redrawn. I’m following the suit because if the prison population is included in the new districts one district could be 13% incarcerated, giving this district extra influence while diluting the vote of anyone living in any other district.

When Vigo County takes up redistricting to fulfill the constitutional mandate of “one person, one vote” the county should ensure that the federal prison population doesn’t undermine their efforts. Currently 3,251 of the people in District 4 are actually people incarcerated at the Terre Haute Federal Correctional Complex. The people reported by the census at the correctional complex cannot vote and are not legal residents of the prison (and likely not even residents of Indiana) so by including them in redistricting data the county would effectively maintain malapportioned districts.

When looking for a solution to the prison-count problem, Vigo county could follow the example of its county seat, Terre Haute. When Terre Haute redistricted last year, it avoided prison gerrymandering by excluding the very same incarcerated population reported at the Federal Correctional Complex.

What will Vigo County do? Stay tuned.

Rhode Island Senate Committee on Judiciary heard testimony from the Rhode Island ACLU on S 147, a bill to end prison gerrymandering in the state.

by Aleks Kajstura, March 5, 2013

The Rhode Island Senate Committee on Judiciary considered the state Senate’s latest bill to end prison gerrymandering (S147) at a hearing on Tuesday.

Steve Brown of the Rhode Island ACLU testified and answered questions from the Senators. Brown explained why prison gerrymandering is especially dramatic in Rhode Island, testifying:

The need for remedying this problem in Rhode Island is heightened by our state’s special status. We believe we may be the only state with just one prison complex. This fact combines negatively with the fact that Rhode Island legislative districts are smaller by population than in most states.”

Nick Horton of Open Doors also testified in support of the legislation. And Peter Wager, our executive director, submitted testimony based on PPI’s research.

The House is also considering ending prison gerrymandering, with H5283 in the Judiciary Committee. More information about the bills and prison gerrymandering in Rhode Island is available through our Rhode Island campaign page.

[Update: House hearing on H5283 bill will be held next Tuesday evening, March 12, 2013.]

A new resolution introduced in the House and Senate call on the Census Bureau to tabulate incarcerated people at their home addresses beginning in 2020.

by Leah Sakala, March 1, 2013

The Massachusetts Legislature has a new opportunity to take a stand against prison gerrymandering. Senator Sonia Chang-Diaz and Representative Linda Dorcena Forry have introduced a resolution in the Senate and House calling on the Census Bureau to end prison gerrymandering across the nation by tabulating incarcerated people at their home addresses beginning in 2020.

A change at the Census Bureau would be especially helpful for Massachusetts, which faces unique constitutional requirements that would need to be revised before the state could implement a legislative solution as New York or Maryland have done. As the resolution observes,

…the simplest solution to the conflict between federal constitutional requirements of “one person, one vote” and Massachusetts constitutional requirements of using the federal census is for the Census Bureau to publish redistricting data based on the location of an incarcerated person’s residence, not prison location…

Massachusetts legislators know from experience how the Census Bureau’s method of tabulating prison populations distorts democracy. The Co-Chairs of the Massachusetts Special Joint Committee on Redistricting noted in their wrap-up redistricting report last December that prison gerrymandering was a significant problem they faced when they drew new electoral district lines after the 2010 Census:

The tabulation of prisoners should be at the forefront of Bureau priorities in evaluating and adjusting how the 2020 U.S. Census will be conducted.

We agree that the way prisoners are currently counted does a disservice to the state and should be changed.

By passing this resolution, the Massachusetts Legislature can send a strong message that it’s time for the Census Bureau to respond to changing data needs by providing state and local governments with redistricting data that accurately portrays American communities. Stay tuned!

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