International Committee Urged to Scrutinize U.S. Census Practices That Dilute Vote of Minority Populations

Census Bureau’s counting of prisoners in their districts of incarceration rather than their home districts leads to violation of international treaty.

December 13, 2007

International Treaty Violation Also Cited

NEW YORK, Dec. 13 — The United States Census practice of counting prisoners in their districts of incarceration rather than their home districts for the purpose of establishing electoral and Congressional representation is a violation of international treaty. This month, the non-partisan public policy and advocacy centers Demos and the Prison Policy Initiative (PPI) submitted their analysis to the Committee for the Elimination of Racial Discrimination (CERD) in Geneva.

Demos and PPI urged the committee to scrutinize the racially discriminatory redistricting practice of crediting rural white counties with additional population based on the presence of disenfranchised prisoners in violation of Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination. The Demos/PPI comments were included in a larger submission [PDF] prepared by the U.S. Human Rights Network.

The United States ratified the CERD treaty in 1994, and therefore is bound under international law to work to eliminate policies that are intentionally or unintentionally racially discriminatory. The CERD treaty obligates each country to report every two years on its progress at eliminating racial discrimination. The United States submitted its report [PDF] in April and will be questioned by the CERD Committee in Geneva in March 2008. The Committee looks to individuals and organizations in each county to critique the reporting counties report and to highlight omissions.

CERD violations cited by Demos/PPI include:

• People in prison are prohibited from voting. Forty-eight of 50 states refuse to allow people in prison to vote, in violation of Article 5 of the CERD which requires universal suffrage and prohibits actions that reduce the ability of racial groups to exercise political rights. This disfranchisement disproportionately affects U.S. Blacks and Latinos, who are 60 percent of the U.S. prison population, but only 27 percent of the total population.
• State legislative districts are drawn so that prison populations are counted in the district of the prison, not their home district, even though the inmates are not permitted to vote. Even beyond banning votes by people with felony convictions, U.S. states provide additional legislative seats to what are often rural and white districts while diluting the votes of urban and racially diverse districts. This overlooked practice constitutes a separate violation of Article 5.

U.S. Supreme Court decisions require each state’s legislative districts to be substantially equal in population, providing each resident the same representation in government. To account for changing populations, each state must update its districts at least once per decade.

However, all 50 states draw their districts based on flawed data from the U.S. Census that counts prisoners as if they were residents of the prison location, not of their home addresses. Under U.S. common law, people are residents of the place they choose to reside with an intent to remain, and as incarceration is involuntary, it should not qualify as a residence. In most states, this is explicit. New York State presents a particularly egregious example, where state counting of prisoners for redistricting purposes both violates the CERD treaty and possibly the state’s constitution, which declares: “for purposes of voting, no person shall be deemed to have gained or lost a residence, by reason of his presence or absence … while confined in any public prison.”

Yet all 50 states dilute the votes of urban and communities of color by insisting on using the flawed Census data to apportion their legislative districts. According to Importing Constituents: Prisoners and Political Clout in New York, the first study to quantify the redistricting impact of disfranchised prison populations, counting people in prison as residents of the prisons and not their homes cost New York City, for instance, a net loss of 43,740 residents to prison towns outside the city. The transfer of this large, predominantly of color, non-voting population to upstate prisons, where it is counted as part of the population base for state legislative redistricting, artificially enhances the representation afforded to predominantly white, rural legislative districts.

Demos and the Prison Policy Initiative urge CERD members, and the U.S. Census, to redress these violations of apportioning state legislative districts with data that credits disfranchised Black and Latino prisoners to white legislative districts and diluting the voting strength of Black and Latino populations. This is a clear violation of the United States’ obligation under Article 5, which gives all groups the equal right to “to take part in the Government as well as in the conduct of public affairs.”

For more information on this report and the CERD treaty, state specific activity, and the US Census, visit www.prisonersofthecensus.org.

About Demos and the Prison Policy initiative:

Demos is a national, non-profit and non-partisan public policy center. Demos publishes a wide array of research and books, hosts public forums, and works across the nation with advocates and policymakers in pursuit of three overarching goals: a more equitable economy with opportunity and prosperity shared by all; a vibrant and inclusive democracy with greater voter participation and civic engagement; and a public sector with the ability to address shared challenges and work for the common good

The non-profit, non-partisan Prison Policy Initiative documents the disastrous impact of mass incarceration on individuals, communities, and the national welfare. Among its publications is the report, Importing Constituents: Prisoners and Political Clout in New York (April 2002), which documents how the transfer of a large, non-voting population to upstate prisons, where it is counted as part of the population base for redistricting, artificially enhances the representation afforded to predominantly white, upstate legislative districts.

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CONTACT: Peter Wagner, PPI, pwagner [at] prisonpolicy.org

Tim Rusch, Demos, trusch@demos.org, 212-389-1407

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