Second Circuit again mentions Census Bureau’s prison miscount

by Peter Wagner, September 29, 2008

A new opinion from the U.S. Court of Appeals for the Second Circuit makes clear that at least some members of court remain intrigued and concerned that basing legislative districts on Census counts of prison populations may constitute impermissible vote dilution.

Judge Calabresi, writing for a 3 judge panel wrote:

And there is often a significant geographic disparity with regard to groups that cannot vote. For example, in New York, many incarcerated prisoners come from urban centers but the census on which apportionment is based counts “incarcerated prisoners as residents of the communities in which they are incarcerated,” and thus may increase “upstate New York regions’ populations at the expense of New York City’s.”

Kalson v. Paterson No. 07-1243-cv 15 (2d Cir. September 9, 2008).

The Second Circuit is revisiting the issue it addressed in two en banc opinions from 2006. Muntaqim v. Coombe and Hayden v. Pataki challenged New York State’s practice of disenfranchising people in prison and people on parole, combined with historic and systemic discrimination in the criminal justice system, as violations of the Voting Rights Act. Neither lawsuit was successful, but the opinions raised the question of where people in prison reside for voting purposes and whether basing rural white legislative districts on non-resident Black prison populations amounts to impermissible vote dilution.

Muntaqim’s lawsuit against New York State’s election law was dismissed because prior to his incarceration he was a resident of California:

Only New York residents can register and vote in New York. New York Election Law section 5-102(1) provides that “[n]o person shall be qualified to register for and vote at any election unless he is . . . a resident of this state . . . for a minimum of thirty days next preceding such election.” New York Election Law section 1-104(22) defines “residence” for registration and voting purposes as “that place where a person maintains a fixed, permanent and principal home and to which he, wherever temporarily located, always intends to return.” Residence is critical since it is neither gained nor lost as a consequence of incarceration. Under both the New York Constitution and the New York Election Law, “no person shall be deemed to have gained or lost a residence, [for purposes of registering and/or voting] by reason of his or her presence or absence, while . . . confined in any public prison.” N.Y. Const. art. II, § 4; see also N.Y. Elec. Law § 5-104(1) (same). These provisions clearly establish that Muntaqim, a California resident, did not become a New York resident because of his incarceration in New York.

Muntaqim v. Coombe No. 01-7260-cv 6-7 (2nd Cir. May 4, 2006).

Hayden’s claim that New York’s felon disenfranchisement system was dismissed in a lengthy and split opinion by the 13 judge panel. But the court seized upon an issue raised in an amicus brief from the National Voting Rights Institute and the Prison Policy Initiative. We argued that New York State’s decision to used flawed Census counts that credit 43,740 mostly urban, Black and Latino prisoners to rural White Senate districts was one of the circumstances the court should considering when reviewing the Voting Rights Act claim.

The Court was clearly intrigued by this argument, and at oral argument questioned the Attorney General at length whether reliance on flawed Census counts to draw districts could in itself amount to impermissible vote dilution. In its written opinion, the court discussed the issue before directing the lower court to determine whether the prison miscount was properly raised and to rule on its merits. Unfortunately, the Hayden case did not properly state a claim, so the federal courts have not yet had an opportunity to decide the issue on the merits.

The New York Times summary of the first set of decisions is just as applicable now:

Just by calling attention to what amounted to a footnote in the advocates’ case, the judges almost seemed to be prodding the plaintiffs, and the lower court, to examine the case against counting prisoners where they are incarcerated in drawing legislative districts.

Sam Roberts, Court Asks if Residency Follows Inmates Up the River, New York Times, May 13, 2006

Note: Thank you to Brenda Wright at Demos for bringing the Kalson case to my attention.