Phantom Constituents in Maine’s Regional School Unit 13:

How the Census Bureau’s outdated method of counting prisoners harms democracy

by Peter Wagner
January 15, 2009

A centuries-old glitch in the Census is creating big problems for democracy in Maine’s Regional School Unit 13. Two school districts just merged and the governance structure for the new Regional School Unit has unintentionally given one of the six towns in the district a disproportionate influence over the future of education in the region. The reason? The town of Thomaston used to contain the Maine State Prison.

Under federal law, each resident of a community must have the same access to government. One person cannot have more of a say over their shared future just because of where she or he lives. Created in a series of Supreme Court cases in the 1960s and 1970s, this has come to be called the One Person One Vote Rule.

At the congressional and state legislative level, districts are redrawn each decade after the Census so that each district contains the same population. This is done to ensure that one person’s vote is worth the same as another’s.

Instead of drawing districts, smaller governments like that of Regional School Unit 13 often use other methods to comply with One Person One Vote. The School District chose to use a system of weighted voting, where each town elects one or more members to the school board, and each member exercises influence in proportion to the population they represent.

Weighted voting systems differ, but the Regional School Unit chose a system where each of the 13 members of the school board can vote not once, but, depending on the population of the town they are from, 67 to 88 times. In combination with the fact that the larger towns elect multiple people to the school board, and smaller towns elect only one board member, every single resident of the school district should have essentially the same influence over education in the school district as any resident in any other town.

However, this is not the case as the votes were not weighted on the basis of actual population. The Census Bureau counts incarcerated people as if they were actual residents of the town they are incarcerated in even though they are legal residents of their pre-incarceration addresses. This swells the population of the town with the prison.

About 11% of the population used to determine Thomaston’s weighted votes on the school board is actually people who used to be incarcerated at the Maine State Prison. The designers of the school board’s weighted voting system have given every group of 10 residents of Thomaston the same power over school district decisions as each group of 11 residents in the other towns. See Table 1.

Table 1. Every group of 18.99 people in Cushing has as much control over the school board’s decisions as 16.85 people in Thomaston.
Town Actual Population Directors Votes per director Director votes per town Residents per director vote
Cushing 1,272 1 67 67 18.99
Owls Head 1,654 1 88 88 18.80
Rockland 7,578 5 80 400 18.95
South Thomaston 1,518 1 81 81 18.74
St. George 2,696 2 72 144 18.72
Thomaston 3,690 3 73 219 16.85
TOTALS/AVG 18,408 13 999 18.43

Ironically, the prison isn’t even in Thomaston anymore. The weighted votes were based on Census Bureau estimates for 2006, but the Bureau wasn’t aware that the prison had closed when it released those estimates in the fall of 2007. The most recent Census Bureau estimates correct this error, but that set of figures was released after the design of the current weighted voting system.

Although the Census Bureau’s failure to notice that the prison in Thomaston had closed makes the unconstitutional increase of voting power in Thomaston more bizarre, it is besides the point. Even if the prison was still in Thomaston, it should not have been counted in the weighed voting system because the prisoners were never residents of the town.

A legal residence is the place that people choose to be and do not intend to leave. Prison does not qualify as a residence. Maine law is explicit:

A person does not gain or lose a residence solely because of the person’s presence or absence … while kept in any institution at public expense.[1]

Prisoners in Maine can vote, but they must do so absentee in their home communities. Many prisoners will be parents and have an active interest in school board issues, but that interest is in their home districts, not Regional School Unit 13.

Not even the town of Thomaston considers the prisoners residents. The town’s webpage reports the town’s population in the 2000 Census only after manually subtracting the prison population. Thomaston’s “about our town”[2] profile page says that the “Population Per The 2000 Census” was 3,322; but the U.S. Census actually reported 3,748. The difference in the two figures is the prison population that was credited to Thomaston but which the town rightfully ignored.

Recommendations

Maine Regional School Unit 13 is not the first community to face this problem, and others have successfully overcome it. Regional School Unit 13 should follow the lead of similar places around the country and base its governance structure on population figures that do not include the prison population.

Protecting local democracy by correcting the Census Bureau’s mistakes has precedent at the school board and other local levels. New Jersey law, for example, requires the exclusion of state prisoners from the drawing of school board districts.[3] The school boards in Louisiana’s Evangeline and Iberville Parishes ignored the prison population when drawing districts.[4]

Colorado and Mississippi law requires counties to ignore prisoners when drawing country districts, and Virginia law encourages it.[5] Gardner, MA ignored the prison when drawing its city council districts, and counties in New York, California, Illinois, Georgia, and South Carolina have done the same when designing their county governments.

Essex County, NY, which has a weighted voting system not unlike that of Regional School Unit 13, won praise from the New York Times editorial board for its decision[6] to ignore the prison populations when determining the votes of each town supervisor:

The Board of Supervisors for Essex County got it right when it wrote that counting prison inmates as residents unfairly diluted the voting weight of the county’s actual residents, especially since inmates “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.”[7]

When the Maine Regional School Unit 13 is constituted after the January 20 elections, the new school board should fix this problem immediately by re-weighting the votes based on actual population.

Using the same procedure that originally weighted the votes, I prepared two proposals, one based on the same 2006 estimates but with the prison population removed, and the second based on the Census Bureau’s 2007 estimates which reflect the closed prison.

Table 2. Fairer vote distribution based on 2006 estimates with the prison removed manually.
Town Population Directors Votes per director Director votes per town Residents per director vote
Cushing 1,272 1 69 69 18.43
Owls Head 1,654 1 90 90 18.38
Rockland 7,578 5 82 410 18.48
South Thomaston 1,518 1 82 82 18.51
St. George 2,696 2 73 146 18.47
Thomaston 3,690 3 67 201 18.36
TOTALS/AVG 18,408 13 998 998 18.44

Table 3. Fairer vote distribution based on 2007 estimates that reflect the prison’s closure.
Town Population Directors Votes per director Director votes per town Residents per director vote
Cushing 1,253 1 69 69 18.16
Owls Head 1,637 1 90 90 18.19
Rockland 7,480 5 82 410 18.24
South Thomaston 1,531 1 84 84 18.23
St. George 2,692 2 74 148 18.19
Thomaston 3,675 3 67 201 18.28
TOTALS/AVG 18,268 13 1,002 1,002 18.23

Either of these proposed weighted voting systems would fix the current flaw and give the population of each town equal power over school board decisions.

The current weighted voting system violates the U.S. Constitution because it gives some residents of Regional School Unit 13 extra influence because they happen to live next to a former prison. It is imperative that the very first action of the newly elected school board is to fix their weighted vote system. Any other action will come at the expense of the almost 15,000 residents who do not live in Thomaston.

About the author

Peter Wagner is an attorney and Executive Director of the Prison Policy Initiative. In 2002, he authored the first district-by-district analysis of the impact of Census counts of prisoners on state legislative redistricting, Importing Constituents: Prisoners and Political Clout in New York (2002). He has presented his research at national and international conferences and meetings, including a Census Bureau Symposium, a meeting of the National Academies, and keynote addresses at Harvard and Brown Universities. His publications include, with Rose Heyer, Too Big to Ignore: How Counting People in Prisons Distorted Census 2000 (2004) and, with Eric Lotke, Prisoners of the Census: Electoral and Financial Consequences of Counting Prisoners Where They Go, Not Where They Come From [PDF] (2005).

Acknowledgments

This research was supported by a grant from the The After Prison Initiative of the Open Society Institute. I thank Daniel Jenkins, Aleks Kajstura, Elena Lavarreda, and Leah Sakala for their invaluable help researching and drafting this report.

Footnotes

[2] About Our Town, Thomaston, ME, (last viewed January 12, 2009).

[3] N.J.S.A. 18A:13-8; Board v. New Jersey 2004 N.J. Super. LEXIS 361

[4] Jonathan Tilove, Minority Prison Inmates Skew Local Populations as States Redistrict, Newhouse News Service, March 12, 2002

[7] Phantom Voters in New York, New York Times editorial, July 23, 2007.



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