Solutions

Sections

What the Census Bureau can do

What states can do

What counties and other local governments can do

Ideally, the U.S. Census Bureau would change where it counts incarcerated people. They should be counted as residents of their home — not prison addresses. Unfortunately, there is not enough time before the 2010 Census for this option. However, there is still time to change how state and local governments use data provided by the Census. And after the 2010 Census, we’ll need to revisit the idea of changing where incarcerated people are counted.

What the Census Bureau can do

Each decade, shortly after the Census, the Census Bureau publishes a data file intended for use in redistricting. For the 2010 Census, the Bureau has made an important, if subtle, change. Shortly after this "PL94-171 redistricting data file" is published in March, the Bureau will publish a special data product that identifies which blocks contain correctional facilities. This new product will enable jurisdictions to choose to draw districts without the prison populations distorting the districts.

Ideally, the U.S. Census Bureau would count incarcerated people at home, or a state would have a procedure in place to count incarcerated people at their home addresses for state and local redistricting purposes. But where that is not possible, prohibiting districts from using prison populations to unfairly increase their influence achieves almost the same result. The National Research Council of the National Academies, the editorial board of the New York Times and other groups have endorsed this sensible interim solution.

The Bureau will publish population totals for correctional institutions and other group quarters in May 2011, in time for the data to be useful for most redistricting efforts. Timing is the most critical part of this solution. Some states and counties, especially those subject to the pre-clearance requirements of the Voting Right Act, have very early redistricting deadlines. In order to be useful, this critical data needs to be delivered with the PL94-171 redistricting data or shortly thereafter. While some communities will not be able to take advantage of the data because their redistricting timelies are very short, the additional data provided by the Bureau will allow most states and counties to implement the interim solution.

For future censuses, the Census Bureau should prepare to count incarcerated people at their residential addresses. Changing how the data is published in 2011 will allow jurisdictions to remove incarcerated people from the prison locations, but it wil take a change in how incarcerated people are counted to properly credit them back to their home communities.

What states can do

“Although a state is entitled to the number of representatives in the House of Representatives as determined by the federal census, it is not required to use these census figures as a basis for apportioning its own legislature.” Borough of Bethel Park v. Stans, 449 F. 2d 575, 583 (C.A. 3, 1971)

States can fix the Census data by creating a special state-level census that collects the home addresses of people in prison and then adjusts the U.S. Census counts prior to redistricting. This approach is modeled after how Kansas changes where the U.S. Census counts students and the military. Legislation with these goals is currently pending in New York, and Texas. This is the best state solution, but it requires states to begin planning now so that they can collect their own data in April 2010 and begin processing it prior to the release of the Census Bureau’s counts.

Alternatively, states can ignore the prison populations when drawing their state district lines. This approach would not credit incarcerated people back to their homes, but it would end the practice of crediting them to different communities of interest in the wrong part of the state. The advantage of this method is that it can be enacted relatively late, and for the first time this solution will have the cooperation of the Census Bureau to identify the prison populations in the redistricting data as discussed above, or a very detailed advance plan to identify the prison populations. A state constitutional amendment with this approach is currently pending in Wisconsin.

Our legislation page has links to pending bills and model legislation for each strategy.

What counties and other local governments can do

The interim solution of drawing districts without regard to the prison populations, discussed above, has precedent at the county level. Many rural counties with large prisons consider the problem large and the solution obvious. As Essex County, New York wrote in their reapportionment law:

“Persons incarcerated … live in a separate environment, do not participate in the life of Essex County, and do not affect the social and economic character of the towns…. The inclusion of these federal and state correctional facility inmates unfairly dilutes the votes or voting weight of persons residing in other towns within Essex County.” (Essex County Local Law No 1 of 2003)

More than 100 rural counties and other forms of local government currently ignore the prison populations when drawing districts or designing weighted voting systems. In Mississippi, the attorney general directs counties to do so. In Colorado, state law requires counties to ignore the prison populations. Virginia law encourages counties with large prison populations to ignore the prison populations, and New Jersey law requires school districts to be drawn without regard to prison populations.

The overwhelming majority of counties that take the prison populations out prior to redistricting did so because it seemed like the obvious and fair thing to do. With one exception, when the public learns that incarcerated populations are distorting their access to local government, they successfully insist that fair districts be drawn without the prison populations. The remainder of local jurisdictions that drew districts based on the prison populations generally did so only because they didn’t know they legally could adjust the data or that it was technically possible to do so.

The special Census Bureau data file discussed above would assist counties with this process, and counties also explore using correctional data to adjust the Census.