Peter Wagner debunks misunderstandings about Maryland’s No Representation Without Population Act

In an interview on WPFM, PPI’s Exec. Dir. Peter Wagner offered some clarifications about the lawsuit filed to repeal the law that ended prison-based gerrymandering in Maryland.

by Leah Sakala, December 7, 2011

In an interview with Gloria Minott this morning on WPFM, PPI’s Executive Director Peter Wagner offered some clarifications about the Fletcher v. Lamone lawsuit filed to repeal the No Representation Without Population Act that ended prison-based gerrymandering in Maryland.

“The plaintiffs are filing this lawsuit arguing that Maryland’s law, the No Representation Without Population Act, dilutes the votes of African-Americans,” he said, “They have this backwards.”

Peter then explained how Maryland’s first-in-the-nation law increases, not diminishes, minority voting power in Maryland, bringing Maryland’s redistricting process closer in line with the federal “one person, one vote” principle.

To learn more about the case or to read case documents, visit our Fletcher v. Lamone page.

Panic over end to prison-based gerrymandering unfounded

Unfortunate myths fuel NY officials' concerns about ending prison-based gerrymandering in New York State.

by Peter Wagner, December 7, 2011

Last Friday, New York Judge Eugene Devine dismissed a lawsuit filed by Republican lawmakers that sought a return to prison-based gerrymandering. North Country Public Radio covered the reactions of Senator Little and one local official, giving us a great opportunity to address several myths about ending prison-based gerrymandering in New York State. The radio story reports:

The ruling was also a blow to some local leaders, whose communities rely heavily on inmates to bolster their populations. Howard Maneely is town supervisor of Malone.

“Malone is unique, we’re a small town. We have three state prisons here. About one-third of our population are confined to the three correctional facilities. If we take them away from our count, from our population of Malone, we will have hardly any representation at all. Our district will be so big, we’ll hardly know our legislators anymore.”

Putting aside the constitutional question about why legislative districts are based on population and not other factors, I wonder which level of government Supervisor Maneely is worried about and if there might be some fundamental misunderstandings behind his concerns.

On the level of the state senate, with or without the prison population Malone is a tiny part of Senator Little’s district. The prison is a big employer and a newfound priority for Senator Little, but the town itself isn’t a big player in the district. Of course, if Malone has a town-specific need for Senator Little’s attention, they will need something that Senator Little responds to: votes. And that’s one thing that Malone’s prisons can’t provide.

But there is one place where the fact that Malone’s population is one-third incarcerated might have an immediate effect on the town’s ability to influence policy: the county legislature.

I suspect the Supervisor is worrying that without using the prison as padding, the town of Malone’s clout in the country legislature would plummet. Except, of course, it never had that clout in the first place. Franklin County has always refused to use the prison populations when drawing country districts. North Country Public Radio summarized the County Chairman’s explanation of avoiding prison-based gerrymandering as a “no-brainer.”

Franklin County was one of 13 New York counties that refused to use the prison populations when drawing county districts after the 2000 Census. In neighboring Essex County, the Board of Supervisors put their rationale in the Local Law:

Persons incarcerated in state and federal correctional institutions 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 in which … the correctional facilities where they are incarcerated are located.

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. This is particularly so if the 1,898 inmates in the town of North Elba are included in its population total of 8,661 since those inmates would then represent 21.914% of the town of North Elba’s population.

The Board of Supervisors finds that the population base to be utilized in and by the plan apportioning the Essex County Board of Supervisors should exclude state and federal inmates.

Unfortunately, not all counties avoided prison-based gerrymandering like Supervisor Maneely’s county did. That’s why the law passed last year that ended prison-based gerrymandering also amended the Municipal Home Rule Law to require county and municipal governments to avoid prison-based gerrymandering. Senator Little’s lawsuit attacked that part of the law as well, but fortunately the Judge’s decision last week protects the entire law.

I wonder if Supervisor Maneely’s concern may be motivated in part by a separate misunderstanding. One clue may be the fact that he recently told the New York state redistricting Task Force: “We provide services for [incarcerated people] and those facilities, and we need that count….”

Many people don’t know this – and certain upstate Senators are reluctant to clear up this confusion held by their supporters – but the bill in New York does not apply to funding. The bill changes where incarcerated people are counted for redistricting purposes only. Federal and state funds are distributed by a series of complicated formulas, none of which rely on state or local redistricting data. No state or federal funding based on population will be affected. And any payments that the prison system currently makes for town services provided, ie. water, sewer, etc., are based on the prisons actual usage and are unrelated to the Census counts.

Finally, prison-based gerrymandering is over in New York. People who live in state legislative districts that do not have prisons will no longer have their votes diluted. People who live in counties or municipalities with prisons but not immediately adjacent to the prisons will also no longer have their votes diluted. The establishment of one clear standard for state, county and municipal government will set positive example for other states to follow.

And what lessons should other states draw from New York’s experience? Clear up these confusions about how these laws work and who benefits early and often.

Paging Senator Nozzolio…

Judge rejects Senators' lawsuit, says law ending prison-based gerrymandering must stand. Legislature further postpones implementation of law. Coincidence?

by Peter Wagner, December 5, 2011

Jimmy Vielkind writes in the Albany Times Union‘s Capital Confidential Blog that New York’s redistricting task force has postponed today’s meeting about implementing the law ending prison-based gerrymandering.

The Assembly did their reallocation months ago and was happy with their work, and, while it looked to me like the Senate was either stalling or planning to ignore the law, Senator Nozzolio repeatedly told the press that, “the law will be complied with, whatever that law is. Impressions to the contrary are simply not accurate.” In fact, some of his quotes appeared a little testy regarding the letter that the Prison Policy Initiative and other civil rights groups sent urging the redistricting task force to — until told otherwise by a judge — follow the law.

I can’t imagine what could be the hold up now. Did something happen?

Oh, that’s right. On Friday, New York Supreme Court Justice Eugene Devine threw out the Little v. LATFOR case the Republicans filed to overturn the law ending prison-based gerrymandering in New York.

Civil Rights Groups File Amicus Brief Countering Misinformation About Maryland’s “No Representation Without Population” Redistricting Law

The coalition amicus brief shows that Maryland's “No Representation Without Population” law is protective of minority voting rights.

December 5, 2011

FOR IMMEDIATE RELEASE December 5, 2011:

BALTIMORE, MD – Strongly contending that the Republican-sponsored challenge to Maryland’s landmark 2010 civil rights law, the “No Representation Without Population Act,” runs directly contrary to its plaintiffs’ goal of increased representation for Maryland’s African-American community, a coalition of civil rights groups today announces that an amicus brief has been filed to counter misinformation and defend the landmark civil rights law. The brief was filed with a special three-judge federal court convened to hear the Fletcher v. Lamone case, on behalf of the ACLU of Maryland,Maryland State Conference of NAACP Branches, Somerset County Branch of the NAACP, NAACP Legal Defense And Educational Fund, Inc., Howard University School of Law Civil Rights Clinic, Prison Policy Initiative, and Dēmos.

In related news, a separate lawsuit (Little v. LATFOR) brought to challenge a New York law inspired by Maryland’s No Representation Without Population Act was dismissed on Friday by the NY State Supreme Court, upholding the validity of this important reform.

In the coalition amicus brief, the groups make clear that Maryland’s first-in-the-nation law requiring the state to count incarcerated persons at their home addresses is protective of minority voting rights. Although incarcerated persons are not allowed to vote, prison populations previously were used to pad the populations of districts that contained prisons. That practice diluted the vote of every Maryland resident who did not live near the prison complex in western Maryland, and had a particularly negative effect on African-American communities that experience disproportionate rates of incarceration.

Moreover, the No Representation Without Population Act simply has nothing to do with the core issues in the Fletcher case. The ability to create a third majority African American congressional district is not diminished in any way by allocating incarcerated persons to their home communities. In fact, the No Representation Without Population Act actually enhances the representation of most of the plaintiffs in the case, precisely because it properly credits the population of African-American communities.

Brenda Wright, Director of the Democracy Program at Demos, said: “The No Representation Without Population Act was designed to end distortions caused by counting incarcerated persons as members of communities to which they have no connection. Counting incarcerated persons at their home residence allows Maryland to draw accurate districts in line with the principle of one person one vote.”

Deborah Jeon, Legal Director for the ACLU of Maryland, said: “Before the No Representation Without Population Act, the voting power of African-American communities was literally being siphoned off through the criminal justice system and redirected to primarily rural areas. It is unconscionable to bring back the old system of using disenfranchised – and disproportionately African-American – prison populations to pad white electoral districts.”

Peter Wagner, Executive Director of the Prison Policy Initiative, and co-author of Importing Constituents: Incarcerated People and Political Clout in Maryland, said: “The State of Maryland should be saluted — not sued — for counting incarcerated people in the correct location.”

Albany Judge Upholds Law Ending Prison-Based Gerrymandering

New York Supreme Court Justice Eugene Devine today upheld New York's law ending prison-based gerrymandering in the Little v. LATFOR lawsuit.

December 2, 2011

Victory for Civil Rights, Fair Representation Removes Any Doubt That Redistricting Body Can Proceed Under New Law

For Immediate Release: Dec. 2, 2011

Albany, NY – New York Supreme Court Justice Eugene Devine today upheld New York’s law ending prison-based gerrymandering in the Little v. LATFOR lawsuit. His decision squarely rejects the plaintiffs’ claim that the New York law violated various provisions of the New York State Constitution.

Attorneys for the fifteen voters from around New York State who joined the suit as intervenor-defendants issued the following joint statement:

By eliminating the political distortion caused by prison-based gerrymandering, the new law upheld by today’s decision will ensure fairer representation for all New Yorkers, starting with this year’s redistricting.

Judge Devine’s decision affirms what we have known from the beginning: the law ending prison-based gerrymandering advances fairness in redistricting and is in complete agreement with New York’s state constitution. Now that Justice Devine has made his decision, we look forward to seeing LATFOR implement the new law in the coming months.

The organizations representing the fifteen voters in court were the Brennan Center for Justice, the Center for Law & Social Justice, Dēmos, LatinoJustice PRLDEF, the NAACP Legal Defense and Education Fund, the New York Civil Liberties Union, and the Prison Policy Initiative. In today’s ruling rejecting Plaintiffs’ legal challenge, the Court repeatedly cited the organizations’ arguments explaining the policies and legal precedent supporting New York’s law.

On Aug. 4, Judge Devine granted the fifteen voters permission to intervene and defend the law. The defendants in the lawsuit were government bodies charged with carrying out the new law: the New York State Legislative Task Force on Demographic Research and Reapportionment (LATFOR), and the Department of Corrections and Community Supervision (DOCCS). The New York State Attorney General’s office is representing DOCCS.

The new law, known as “Part XX,” requires that incarcerated persons be allocated to their home communities for state and local redistricting and reapportionment but does not affect funding distributions. This tracks with the New York State Constitution’s explicit provision that incarceration does not change one’s residence.

New York State Senator Elizabeth Little and a group of co-plaintiffs sought to restore New York’s former practice, which artificially inflated the voting strength of select communities at the expense of all others by allocating incarcerated persons to the districts where prisons are located, rather than to their home addresses.

A recent Quinnipiac University poll reported that public opinion is against prison-based gerrymandering, with a majority of New York State voters agreeing that “prison inmates should be counted as residents of their home districts, not of where they’re imprisoned.” The poll found that majorities of voters from both parties, and majorities of both upstate and downstate voters, favored “counting inmates in their homes, not their prisons.”

About Prison-Based Gerrymandering

There are dramatic examples of prison-based gerrymandering in upstate counties and cities. For example, half of a council ward in the city of Rome, New York is incarcerated. As a result, the actual residents of that ward wield twice the influence of other city residents. Recognizing the distortions caused by prison-based gerrymandering at the local level, 13 New York counties with large prisons – including four in plaintiff Senator Little’s district – have historically exercised their discretion to remove the prison populations prior to redistricting.

Public Welfare Foundation lauds efforts to abolish prison-based gerrymandering

The Public Welfare Foundation’s 2010 Annual Report includes a great article about why abolishing prison-based gerrymandering is a critical step towards a fairer democracy.

by Leah Sakala, November 28, 2011

Executive Director Peter Wagner works from his hotel room in Anamosa Iowa, featured in the article.

The Public Welfare Foundation’s 2010 Annual Report includes a great article about why abolishing prison-based gerrymandering is a critical step towards a fairer democracy.

The Public Welfare Foundation has provided crucial support to our work to end prison-based gerrymandering. We are grateful for the Foundation’s generous support, and proud of the progress we’ve made:

[The Prison Policy Initiative’s] efforts led to some ground-breaking legislative changes in 2010 as Maryland became the first state to enact a law—called the No Representation Without Population Act—ensuring that incarcerated people will be counted at their home addresses when new state and local legislative districts are drawn in response to the 2010 Census.

Delaware and New York passed similar laws, although some upstate New York legislators are challenging that state’s law in court.

The Census Bureau is taking notice. Shortly before the 2010 Census, the Bureau responded to public pressure and announced that it would publish a special file with the prison counts.

New York voters file suit against LATFOR to expedite redistricting process

Six NY voters filed a lawsuit asking for a federal judge to take over the "stalled" redistricting process and implement the 2010 law that ended prison-based gerrymandering.

by Leah Sakala, November 21, 2011

New Yorkers have had enough of the legislature’s stalling to fully implement last year’s law that ended prison-based gerrymandering in New York. Last week, six New York voters filed a lawsuit against the state for failing to move forward with the redistricting process, arguing that a federal judge should take over.

In the suit, Favors v. Cuomo, the plaintiffs point out that one of the biggest obstacles to completing fair redistricting in New York is the Legislative Task Force on Redistricting and Reapportionment’s (LATFOR) failure to produce and release redistricting data in which incarcerated people are reallocated to their home addresses. Not only does state law require LATFOR to produce this data, but the reallocation is a critical step to ensuring that New York redistricting is consistent with the constitutional principle of “one person, one vote.”

But LATFOR already has the home address data provided by the Department of Correctional Services, and the Task Force has publicly agreed that it will fully comply with the reallocation law. And the clock is ticking—redistricting needs to be completed in enough time to prepare for the 2012 primary.

So whats the problem? The Task Force members say that they can’t agree on which reallocation software to use. It’s that simple.

It is impossible for anyone, legislator and concerned citizen alike, to have a meaningful conversation about specific redistricting proposals without first having the underlying redistricting data that LATFOR is responsible for providing. Furthermore, many county and municipal governments are currently undergoing redistricting in order to meet their own redistricting deadlines, and LATFOR’s inaction is denying these local governments the option to draw their districts based on the reallocated data. It’s unfortunate that LATFOR’s internal “legislative stalemate” is posing such a threat to the wellbeing of New York’s political landscape for the next decade.

Civil Rights Groups Take Stand for Maryland’s “Prisoners of the Census” Redistricting Law

PPI and other civil rights groups announced that they will file an amicus brief to defend the “No Representation Without Population Act,” which ended prison-based gerrymandering in Maryland and is currently being challenged before a federal court in Fletcher v. Lamone.

November 18, 2011

FOR IMMEDIATE RELEASE November 18, 2011:

BALTIMORE, MD — Today, a coalition of civil rights groups, including the Prison Policy Initiative, Dēmos, ACLU of Maryland, Maryland State Conference of NAACP Branches, Somerset County Branch of the NAACP, and others announced that they are preparing an amicus brief to defend the “No Representation Without Population Act” currently being challenged before a federal court in Fletcher v. Lamone, a lawsuit challenging Maryland’s Congressional redistricting plan. The brief will make clear that Maryland’s first-in-the-nation law requiring the state to count prisoners at their home addresses is protective of minority voting rights, and will decry the plaintiffs’ attempt to bring back the old system of using disenfranchised – and disproportionately African-American – prison populations to pad white electoral districts.

The plaintiffs in Fletcher raise seven civil rights and partisan gerrymandering claims. The civil rights groups preparing the amicus brief will urge the court to dismiss the three claims challenging application of the “No Representation Without Population Act.”

Passed and signed into law in 2010, the “No Representation Without Population Act” is civil rights reform that requires that state prisoners be counted in their home districts, not where they are incarcerated. It corrects discriminatory vote enhancement and ensures fair representation in legislative redistricting following the latest U.S. Census.

The “No Representation Without Population Act” corrects an unfair enhancement of voting power that a district with a prison receives by diluting the voting power of any district without a prison. The law’s impact has already been felt across the state. Before the law, one Maryland state legislative district’s population was 18 percent prisoners. As a result, four voting residents in this district had as much political influence as five residents elsewhere, because prisoners could not vote. The impact at the local level is even more pronounced. In Somerset County, on Maryland’s Eastern Shore, 64 percent of the population in one Commission district was made up of prisoners. This meant a vote in that district was worth 2.8 times more than a vote in neighboring districts.

The distortion of the election system through inclusion of non-voting prisoners has been a longstanding civil rights problem in Maryland, and its effects can be clearly seen in Somerset County. There, over the course of decades, inclusion of prison in a majority-minority district meant that despite the County’s 42 percent African American population, no black official was ever elected until after the No Representation Without Population Act was passed.

Brenda Wright, Director of the Democracy Program at Demos, said: “The No Representation Without Population Act was designed to end distortions caused by counting incarcerated persons as members of communities to which they have no connection. Counting incarcerated persons at their home residence allows Maryland to draw accurate districts in line with the principle of one person one vote.”

Deborah Jeon, Legal Director for the ACLU of Maryland, said: “By enacting this vital civil rights law, Maryland took a giant step toward correcting unfair vote enhancement, and making fair representation possible in legislative redistricting. Democracy now has more meaning in Maryland, especially in a place like Somerset County, where African American voters may finally be heard in proportion to their numbers in the community.”

The No Representation Without Population Act is an important tool to solving these problems, and restoring the idea of “one person, one vote” to Maryland.

Peter Wagner, Executive Director of the Prison Policy Initiative, and co-author of Importing Constituents: Incarcerated People and Political Clout in Maryland, said: “The State of Maryland should be saluted — not sued — for counting incarcerated people in the correct location.”

Peter Wagner to be honored by the Center for Church and Prison

PPI's Executive Director, Peter Wagner, will be one of the honorees at the formal launching of the Center for Church and Prison event on 11/19.

by Leah Sakala, November 18, 2011

Tomorrow marks the formal launching of the Center for Church and Prison, a faith-based research organization dedicated to reducing incarceration and recidivism. The inaugural event in Cambridge, Massachusetts will feature music and theater, and honorees at the event will include PPI’s Executive Director, Peter Wagner.

The Center for Church and Prison has been instrumental in working to remedy the problem of prison-based gerrymandering in Massachusetts. For example, the Center organized “Black Community Losing Power: Counting Inmates In the Wrong Place,” a highly successful public forum and panel discussion about prison-based gerrymandering.

We’re looking forward to celebrating with the Center for Church and Prison at tomorrow’s event, and hope to see you there if you’ll be in the New England area! Please check out the event website for tickets and more information

McAlester City Okla. Councilor continues to question necessity of prison-based gerrymandering

A letter to a City Councilor in McAlester Oklahoma explains why the city should change the City Charter if necessary to avoid prison-based gerrymandering.

by Peter Wagner, October 25, 2011

This is a letter I sent to Robert Karr, a City Councilor in McAlester Oklahoma about why prison-based gerrymandering is wrong and what the city should do about it. The city believes that its new charter requires it to engage in prison-based gerrymandering, and there has been a lot of public outcry about it. We wrote about the controversy in April and September.

The McAlester News summarized Mr. Karr’s position back in April:

“It seems this wouldn’t be fair,” said Ward 4 Councilman Robert Karr. “Prisoners can’t vote so I can’t really represent them.”

Not only would it be hard for an elected official to represent inmates, the smaller voting block would dilute the votes of voters in the other five wards.

“I think it is fair the way we have done it in the past,” said Karr. “Hopefully common sense will prevail.”

As my letter attests, Mr. Karr has not yet succeeded, but I’m not giving up hope just yet. — Peter Wagner

October 25, 2011

Dear Mr. Karr,

Thank you for your call on Friday and for your interest in my thoughts on McAlester’s voting wards.

By way of background, I am the Executive Director of the Prison Policy Initiative. For the last decade, I have been working with state and local governments and the U.S. Census Bureau to address a problem the New York Times has labeled “prison-based gerrymandering.”

The Census Bureau counts incarcerated people as if they were residents of the census blocks that contain correctional facilities, rather than as residents of their legal home addresses. When legislative bodies use Census counts of correctional facilities to draw legislative districts, they unintentionally grant extra representation to districts that contain prisons, and consequently dilute the votes of every resident of every district without a large prison.

This issue is particularly important in small cities like McAlester because your districts are not significantly larger than the prison population. A single prison can have a massive impact on how political power is distributed in a small city or county.

In the last decade working on this issue, I’ve found more than a hundred counties and cities that have refused to use prison populations when redistricting. Except for in the three states,[1] the dramatic instances of prison-based gerrymandering generally exist only where officials are either unaware of the problem, or where they are unaware of the legal solutions commonly utilized by other cities and counties. Your city is an interesting exception.

In the last year I have written to more than two thousand county commissioners and city councilors who have prisons in their communities to let them know that they are not the first to face this problem. I also closely monitor Google News for any sign of a community that for one reason or another I was not in touch with. I discovered the extensive articles in the McAlester News about citizens being unhappy with the idea of the prison distorting how districts are drawn in your city. The volume of outcry from McAlester residents in opposition to counting the prison population makes this situation all the more tragic.

Your city is poised to engage in one of the most dramatic examples of prison-based gerrymandering in the nation because the National Civic League’s Model City Charter, on which you based your charter, wasn’t created with these circumstances in mind.

According to my analysis of your proposed districts, about 57% of the 4th ward will consist of people who are not a part of your community. They aren’t allowed to vote, and if they could vote, they would have to vote via absentee ballot in another part of the state. Using the prison population as padding inflates the weight of a vote cast in the 4th ward, and dilutes the votes of every resident in every other district.

The Supreme Court requires regular redistricting to ensure that all residents have the same access to government. The Court said in one of the first major “one person one vote” cases that the “weight of a citizen’s vote cannot be made to depend on where he lives.”[2] Unfortunately, by relying on the U.S. Census to draw its city council wards, McAlester is going to be declaring that a vote cast in the 4th Ward is worth more than twice as much as one cast elsewhere.

And of course, from speaking to you and others, I’ve learned there is also a different harm to including the prison: McAlester excluded the prison population when drawing the wards after the 2000 Census, so the change in the source of your redistricting data will require a radical reshuffling of the districts. I note that the prison change will have a far more dramatic impact on the McAlester districts than actual population growth in the city.

I’d like to discuss a couple of myths and then suggest some solutions that may be helpful to you.

Myths:

From reading the McAlester News, I see that there are a few myths I should address first:

1. Myth: Federal funding would be affected by excluding the prison. Federal funding is distributed by a series of complex formulas that do not use municipal redistricting data. For this reason, McAlester was not negatively affected during the previous decade when it excluded the prison population from its districting calculations.

2. Myth: Federal law requires the use of the Census. Most places rely on the Census because it is free and of good quality, but the Supreme Court has said that state and local districts are not required to use Census data in redistricting.[3]

   The Court also explained:

   Neither in Reynolds v. Sims nor in any other decision has this Court suggested that the States are required to include … persons denied the vote for conviction of crime in the apportionment base by which their legislators are distributed and against which compliance with the Equal Protection Clause is to be measured. The decision to include or exclude any such group involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere. Burns v. Richardson, 384 U.S. 73, 92 (1966) (emphasis added)

   More than 100 counties and municipalities, including Greer County, Oklahoma, currently exclude the prison populations when drawing county and municipal district lines.[4]

3. Myth: State law requires the use of Census data. While a handful of states do have provisions like this, I am not aware of one in Oklahoma. If you discover the citation for one, I would be eager to discuss this with you.

Solutions:

I can see three possible solutions to the apparent conflict between the City Charter and the federal principle of One Person One Vote. The first two are inspired by the actions of other cities and counties in similar circumstances. They depend on a technical reading of the Charter and you would certainly want to consult the City Attorney. The last solution addresses a charter amendment.