The NY Times column on Evenwel and prison gerrymandering hinges on superficial contradictions

New York Times ignores important differences between efforts of Evenwel plaintiffs and those seeking to end prison gerrymandering

by Aleks Kajstura, October 15, 2015

A recent New York Times column suggests that our work with the ACLU against prison gerrymandering in Rhode Island and Florida is somehow at odds with the goal of representational equality for communities with non-citizen populations in Texas – a goal that we also share with the ACLU. But, this apparent contradiction disappears when you look more carefully at our organizations’ arguments in each case.

As we wrote last week:

Currently, the Census Bureau counts incarcerated people as if they lived at the location of the prison instead of their home addresses. This can indeed result in representational inequality when states and localities use the data for redistricting. But the ultimate goal of reforming prison gerrymandering is not to eliminate incarcerated persons entirely from the population count. Rather, the four organizations that Dēmos is representing as amici curiae want to ensure that incarcerated persons are tabulated at the correct location, as constituents of their own legislators.

Despite this, the New York Times column asserts that our lawsuits in Rhode Island and Florida seek total exclusion of all incarcerated persons from population counts used for redistricting:

[T]he Florida and Rhode Island suits, brought on behalf of voters who said prisons in nearby districts were diluting the value of their votes, did not ask that the prisoners be counted elsewhere, only that they not be counted locally.

This is not correct because the Times is conflating two distinct problems caused by the Census Bureau, and ignoring the remedies that different levels of government are able to provide with respect to incarcerated persons.

As we explained in our amicus brief:

In counting incarcerated people at the location of the prison, the Census Bureau makes two distinct errors that affect redistricting: 1) it fails to count incarcerated people where they reside, and 2) it counts incarcerated people at the location of the facility. A city or county has the power only to correct the second part of the Bureau’s miscount – assigning people to the wrong location – and not the first part – failing to assign them to the correct location. … This data limitation with respect to incarcerated persons in no way suggests that non-voters should be disregarded in redistricting, when such persons have close ties to the community where they are actually counted and cannot even theoretically be counted at some other location by the Census Bureau.

The Evenwel plaintiffs seek to entirely exclude all non-citizens from redistricting counts, regardless of their residence in, and strong ties to, the community in which they are counted. By contrast, the plaintiffs in the Cranston case have made a careful, fact-based determination of where people incarcerated at the facility actually reside, be it in Ward 6, elsewhere in Cranston or outside of the city and want the city’s districts to treat those groups separately.

Simply put, Cranston does not have the authority to fix prison gerrymandering problems outside its jurisdictional boundaries, and so plaintiffs have not sought to force them to do so.

We devote 7 pages of our brief to an explanation of how and why people remain residents of their home address, even when incarcerated. And we contrast that with non-citizens:

[U]nlike incarcerated persons who are counted in the prison location, non-U.S. citizens are counted in communities where they have strong actual ties to other members of the community. Indeed, they often reside and are counted in households that include family members who are U.S. citizens. Unlike incarcerated persons, noncitizens and other non-voters are able to participate in the economic and civic life of the community where they are counted – they shop at grocery and clothing stores, gas stations and other establishments; attend religious services and support religious establishments; work and pay taxes in the community; and engage in civic and volunteer activities. None of these avenues for community engagement are available to the incarcerated persons who are counted as residents of the prison where they are housed.

These differences are why our brief says that the Evenwel plaintiffs are drawing a “false parallel” to prison gerrymandering.

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