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Massachusetts redistricting leaders urge the Census Bureau to change how it counts imprisoned people to provide a uniform approach for all 50 states and eliminate costly litigation

Without action on the part of the Census Bureau to change its residence rule for incarcerated people, Massachusetts cannot change its own procedures.

by Jyoti Jasrasaria, July 19, 2016

Four members of the Massachusetts Legislature submitted a comment in response to the Census Bureau’s federal register notice about the Residence Rule and Residence Situations (Rule), 80 FR 28950 (May 20, 2015).

The group includes four authorities on the subject of redistricting: Stanley C. Rosenberg (Senate President and Co-Chair of the Special Joint Committee on Redistricting from 2010 – 2012), Benjamin B. Downing (Chair of the Senate Committee on Redistricting), Edward F. Coppinger (Chair of the House Committee on Redistricting), and Michael J. Moran (Division Chair of the House of Representatives Leadership and Co-Chair of the Special Joint Committee on Redistricting from 2010 – 2012).

In their comment, these four leaders urge the Census Bureau to count imprisoned people at their residential address rather than at the address of the correctional facility where they are temporarily incarcerated. The comment also includes a 2014 bicameral resolution to the same effect: “Urging the Census Bureau to Provide Redistricting Data that Counts Prisoners in a Manner Consistent with the Principles of ‘One Person, One Vote.’” The legislature adopted the resolution based on testimony and advice it received that prisons are often geographically and demographically distinct from the prisoners’ home communities. Due to this discrepancy, the authors contend that Census data distorts the one-person, one-vote principle:

By counting prisoners at their place of incarceration, rather than the legal address of the person prior to incarceration, the relative strength of votes by residents in that district [where a prison is located] are inflated at the expense of voters in all other districts in the Commonwealth.

The authors point out that the Census’s counting of incarcerated people at their “usual place of residence” instead of their “legal residence” has required individual states and localities to create their own methodologies to correct for problems of political representation. Thus far, California, Delaware, Maryland, and New York have adjusted the Census population totals to count incarcerated people at their home addresses. However, Maryland and New York have faced legal challenges to their adjustments, which the authors note as potential threats to other states unilaterally changing U.S. Census numbers.

Furthermore, Massachusetts is bound by its state constitution to base its legislative districts on the federal Census. Without action on the part of the Census Bureau to change its residence rule for incarcerated people, Massachusetts cannot change its own procedures. Therefore, as the groups’ comment asserts, “[t]he most expedient and streamlined avenue for changing the method for counting prison populations lies with the Census Bureau,” and an updated Rule would provide a uniform approach for all 50 states that would both “rectify the perceived inequalities in counting prisoners and eliminate costly litigation for states to defend redistricting plans based on adjusting local prison populations.”

Although, as Massachusetts’s resolution mentions, the Census Bureau has recognized the demand for more accurate prison population data, the Bureau has proposed to maintain counting incarcerated individuals at their prison facility addresses and disregard the comments from these redistricting experts.

Jyoti Jasrasaria, a 2L at Harvard Law School, is a 2016 summer legal intern at the NAACP Legal Defense & Educational Fund, Inc.

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