Prison-based gerrymandering in Tennessee Counties

This memo discusses several ways that Tennessee counties could harmonize the federal “one person one vote” principle with the unique requirements of the State Constitution.

by Peter Wagner and Aleks Kajstura, September 26, 2011

The most dramatic instances of prison-based gerrymandering tend to be in rural counties that have large prisons, because a single state or federal prison can be the majority of a small county board district. The common solution used by more than 100 counties and municipalities is to remove the prison populations prior to redistricting. In most cases, this solution is permitted by law: Federal law gives local governments the right to determine the population base for their districts, and most state laws are silent on the question.

The operative word is “most.” Many of the most dramatic examples of prison-based gerrymandering are clustered in states where local governments have a little less flexibility when redistricting: notably Virginia, Wisconsin and the subject of this memo, Tennessee.

At the National Conference of State Legislatures in August, I met Tom Fleming, Director of the Office of Local Government within the Tennessee Comptroller’s office. He and I were attending the same session where the Census Bureau was soliciting feedback on the effectiveness of the Redistricting Data Program. After the session, he and I spoke about how the issue of prison-based gerrymandering effects Tennessee counties, and I offered to prepare a briefing memo on some possible solutions to the problem for this round of redistricting. That memo is below.

To: Tom Fleming
From: Peter Wagner and Aleks Kajstura, Prison Policy Initiative
Date: August 23, 2011
Re: Prison-based Gerrymandering in Tennessee Counties

This memo discusses the impact of the Census Bureau’s decision to count incarcerated people as residents of the prison location on Boards of County Commissioners districts in Tennessee, and discusses several ways that counties could harmonize the federal “one person one vote” principle with the unique requirements of the Tennessee State Constitution.

Introduction to the Problem

Every decade, counties in Tennessee, and across the nation, redistrict their Boards of County Commissioners to ensure equal representation in county government as required by U.S. Supreme Court precedent. When each district contains the same population, each member of the community is afforded equal representation. This undertaking, however, is vulnerable to any flaws in the data on which redistricting relies. There is a longstanding flaw in the Census that counts incarcerated people as residents of the prison location, even though almost all are barred from voting [1] and are not legal residents of the surrounding community.[2] When district population counts rely on incarcerated populations, people who live close to the prison are given more of a say in government than everybody else. The practice of using prison populations to dilute the votes of other residents is referred to as “prison-based gerrymandering.”

One of the most dramatic examples in the nation that was created after the 2000 Census was in Lake County Tennessee where 88% of the population in County Commissioner District 1 was not local residents, but incarcerated people counted in the Northwest Correctional Complex. This gave every group of 3 residents in District 1 as much say in county affairs as 25 residents in other districts. Nine other counties in Tennessee saw dramatic instances of prison-based gerrymandering, as seen in this table, from the Prison Policy Initiative report Phantom Constituents in Tennessee’s Boards of County Commissioners:[3]

The Tennessee State Constitution may prohibit the most obvious solution

The U.S. Constitution requires counties to redistrict each decade, but in most states counties are free to choose which populations to include in the population base used to draw the districts. A few states require local governments to exclude prison populations when redistricting,[4] and more than 100 counties and municipalities around the country independently choose to remove the prison populations when drawing local legislative districts.[5] To assist counties in this process, the Census Bureau recently decided to produce the Advance Group Quarters Table to make the process easier.

Michigan spares most counties and municipalities from prison-based gerrymandering

Michigan law will prevent most prison populations from unintentionally skewing representation in local government, but problems still remain.

by Andrew Stecker and Aleks Kajstura, September 26, 2011

While the states of New York and Maryland are ending prison-based gerrymandering state-wide just now for the first time, over 100 local governments throughout the country have already been avoiding prison-based gerrymandering on their own. Counties and municipalities redistrict their governments every 10 years just like states do, but because of their smaller populations, the Census Bureau’s policy of counting incarcerated people at the location has a greater impact in skewing local democracy.

Anamosa, a small city in Iowa, for example, had a City Council ward where 96% of the “residents” were actually in the State Prison located in one corner of town. In Anamosa, the 58 people who lived next to the prison have as much power on the city council as about 1,370 living elsewhere in town.

In order to avoid such gross misrepresentation, over 100 counties and municipalities adjust their redistricting data to remove large prison populations. This approach allows the counties to base their districts on their actual resident population.

A few states have attempted to aid their local governments in dealing with this problem though state legislation. Colorado requires counties to subtract incarcerated populations before conducting county redistricting. Mississippi state law has been interpreted by the Attorney General to require counties to exclude prison populations as well. Virginia extends this policy only to counties with the most extreme population distortions.

Michigan, however, has come the closest to a full solution for local governments. Michigan statutory requirements for redistricting prevent state prison populations from skewing either county or municipal democracy. The statutes provide that the district population cannot include anyone in a state institution who is not a resident of the city or county for election purposes.

These Michigan laws will prevent most prison populations from being unintentionally used by local governments in redistricting, but problems can still remain. Long after these laws were enacted, for example, a new federal facility was built in Washtenaw County. The statutes do not address federal prisons at all, leaving such counties with the burden of identifying and addressing the problem without the benefit of clear guidelines.

A comprehensive nationwide solution would fill these holes that are currently found in the patchwork of state and county solutions. States such as Michigan have come a long way to preventing prison-based gerrymandering from affecting local redistricting, but ideally, the U.S. Census Bureau would just count incarcerated people as residents of their legal home addresses, and not as residents of the correctional facilities.

Mansfield, Ohio succumbs to prison-based gerrymandering

Unfounded fears about funding lead to prison-based gerrymandering in Mansfield, Ohio.

by Aleks Kajstura, September 22, 2011

Earlier this summer we reported that Mansfield, Ohio was considering avoiding prison-based gerrymandering by excluding the population of two state prisons from the city’s redistricting data.

On Tuesday, the City approved maps that included about 5000 people incarcerated at the Richland and Mansfield Correctional Institutions as if they were residents of the City’s 5th Ward. At-Large Councilman Doug Versaw explained why this was a bad idea:

“They [the prisoners] are not citizens of Mansfield. They cannot vote. They have nothing to do with city council at all, in that we don’t represent them,” he said. “All of the wards in the City of Mansfield now have 8,000 people (with potential voting rights) — except for Ward 5, which has 3,000. To me, that gives those people in Ward 5 ‘superrepresentation,’ which I don’t think is fair.”

This “superrepresenation” amounts to giving actual residents of Ward 5 twice as much political power as any other Mansfield resident.

Why, then, did prison-based gerrymandering prevail in Mansfield? The City Council was afraid that drawing fair districts would somehow hurt their federal or state funding.

The impact of population totals on funding is an unfortunate but common and recurring theme in local redistricting discussions. This often sets up a false choice between electoral fairness and funding. This misunderstanding might come from the fact that the Census Bureau encourages participation by highlighting that many funding formulas are in part based on census data. However, no federal or state funding formula relies on redistricting data. Furthermore, most funding formulas are complex in order to specifically target the actual population in need – for example, school funding is often based on the actual number of students or school-aged children. Prison populations simply do not factor into such well-tailored calculations.

Under state law, prison populations are not even included in the official census population counts used to determine whether a municipality classified as a “village” should be upgraded to a “city” classification. When the Ohio Secretary of State certified Grafton’s population to classify it as a village, he excluded the prison population from his calculations. This practice is consistent with the definition of residence under Ohio law.

It is unfortunate that misunderstandings about funding formulas can have such a devastating impact on the ability of Mansfield residents to have equal say in city government. Having a prison in your town should not deny you access to the principle of “one person, one vote.”

Indiana students take action to improve local redistricting

Students in a Honor Scholar seminar at DePauw University are repairing local democracy, and getting academic credit for it to boot.

by Leah Sakala, September 21, 2011

A recent article in The DePauw reports that students in a Honor Scholar seminar at DePauw University are repairing local democracy, and getting credit for it to boot:

Following a class discussion on how prison populations cause an imbalance in community population counts, students investigated whether this was an issue that actually affected nearby communities. […]

As students called counties to gather general county opinions about prisoners affecting population counts, they discovered that many of the counties did not know they needed to redistrict. […]

“We called the state, and they said we didn’t need to,” [Putnam County Commissioner Nancy] Fogle said. “They told us that all that needed to be done was to re-certify since the population had not changed much.”

Census data showed that the populations had actually fluctuated greatly in Putnam County and the lack of redistricting caused citizens to lose their equal vote.

Kauffman’s students presented their findings to the Indiana State Redistricting Commission. The Putnam County Commissioners agreed on the importance of the issue and is currently in the process of re-drawing district lines.

Continue reading →

California coalition urges Gov. Brown to sign bill to end prison-based gerrymandering

Californians United for a Responsible Budget (CURB) coalition of 55 organizations calls on Gov. to sign AB 420 into law.

by Leah Sakala, September 21, 2011

Californians United for a Responsible Budget (CURB) has just released a letter signed by 55 organizations calling on Governor Brown to sign AB 420. This legislation would mandate that the California Department of Corrections and Rehabilitation provide the Citizens Redistricting Commission with incarcerated populations’ original address data. This information would allow the Commission to end prison-based gerrymandering throughout the state by reallocating incarcerated people to their real addresses.

The sign-on letter states:

Because of the disproportionate number of people of color in our state who incarcerated, the impact of AB 420 could be extremely great. By providing the Commission on Redistricting accurate information regarding the place of residence of people in California’s prisons, they will have the information needed to draw district lines that correctly reflect the population in our state. AB 420 is not a bill that should pit urban areas against the rest of California. Rather, it is a bill that recognizes the basic principle of “one person, one vote.” This is a bill that could contribute to providing fair and proportional representation to all Californians.

We also submitted a letter asking Governor Brown to sign AB 420.

We commend the Californians United for a Responsible Budget coalition for taking this stand for the welfare of California’s democracy.

McAlester, Okla. still struggling to avoid prison-based gerrymandering

Unintended consequence: an Oklahoma city's new charter may require prison-based gerrymandering. Or does it?

by Peter Wagner, September 19, 2011

Even though the citizens of McAlester appear to unanimously agree that prison-based gerrymandering is a bad idea, the city is still struggling with the problem. We blogged about McAlester back in April.

Ten years ago, the city excluded the prison population when drawing the city council wards. More than 100 other counties and municipalities with large prisons did the same thing. It’s a common practice in line with common sense. Had the city included the prison population, the population of one district would have been 60% incarcerated. The 1,333 actual residents in that district would have received the same representation as 3,333 people in other parts of the city. In other words, the people who lived farther away from the prison would have had less than half the influence of residents who lived near the prison.

So, if the city solved the problem ten years ago what’s the problem now? Over the last decade, the city rewrote their charter and used language that prohibited the kind of adjustment they used last time. The new language says that districts “shall be equal in population … according to the most recent census” (Emphasis added, Sec 6.04(d)).

But it is clear that the drafters of the new city charter never intended to require the city to engage in prison-based gerrymandering:

Dorothy Crone, who had been a member of the commission that created the new City Charter, said it had not been the members’ intent to have the prison inmate population included when redrawing the ward boundaries.

“I served on the City Charter (Commission) when we made those changes,” she said.

“I think we made a little mistake that needs to be corrected.”

Some city residents have discussed changing the charter, but that discussion may have been short circuited by three apparent misunderstandings:

First, according to an article from April, there was a concern that such a change would affect the city’s federal funding. This is an unwarranted concern. Federal funding is distributed by a series of complex formulas that do not use municipal redistricting data.

Second, discussions about amending the charter in order to clarify the unintended language seem to be based on the assumption that it’s a lengthy process that cannot be completed before redistricting is finished. We are not experts on Oklahoma law, but the plain language of the city’s charter seems to describe a simple procedure that could take effect immediately:

ARTICLE 8. CHANGES TO THE CHARTER

Sec. 8.01. Proposal of Charter Changes.

A proposition to change this Charter may be either in the form of a proposed amendment to a part or parts of the Charter or of a proposed new Charter….

(b) By ordinance of the Council containing the full text of the proposed amendment or new Charter and effective upon adoption….

Third, the Commission appears to be operating under some pessimistic and unfounded assumptions:

[Ward Commission Chairman Evans] McBride said that even if the charter hadn’t required the prison population to be included when redrawing the boundaries, it’s likely that federal and state law would have required it anyway.

Again, we aren’t experts on Oklahoma law, but federal law clearly gives counties and municipalities permission to determine for themselves which populations to include when drawing districts. 10 years ago Greer County excluded the prison population when drawing their County Commission districts, and more Oklahoma counties did so this decade. If there is a state statute that requires municipalities to engage in prison-based gerrymandering, we aren’t aware of it.

Clearly McAlester wants to do the right thing. It would be unfortunate if the city diluted the votes of the majority of its own citizens because of some unintended language in a city charter that can be easily changed.

Prison-based gerrymandering in Arizona could harm Native American political representation

At an Arizona Independent Redistricting Commission public meeting on Thursday, Jim March argued that prison-based gerrymandering would dilute Tribal communities' votes.

by Leah Sakala, September 16, 2011

When I wrote a blog post earlier this week about Arizona‘s redistricting process, I hadn’t yet come across Steve Muratore’s extensive coverage of the Arizona Independent Redistricting Commission in his blog The Arizona Eagletarian. After Steve reached out, I quickly added his blog to my feed. I’m glad I did.

The Arizona Independent Redistricting Commission recently decided to leave prison populations in their redistricting data, but keep in mind as they draw their maps the electoral consequences of including a large number of non-voting incarcerated people in any given district. The Commission also promised to exclude prison populations from their analysis of minority voting strength under Section 5 of the Voting Rights Act.

But while the Commission may have identified a plan of action, that there are still other factors to consider. At Thursday’s Redistricting Committee public meeting at the Heard Museum in Phoenix, one of the main agenda items was meeting with Tribal Leaders to receive their input and discuss their redistricting concerns. During the public comments portion of the meeting, Jim March of Black Box Voting argued that prison-based gerrymandering has a detrimental effect on Tribal communities’ political representation. As Steve reported in a blog post this morning:

Public testimony of note on Thursday, other than by tribal representatives, included Tucson Libertarian activist Jim March making the case, this time also to the Native Americans in the audience, regarding the prison population issue. He played a PowerPoint presentation and told the audience that unless the method for addressing prisons is changed, it will materially dilute the voice of voters in Arizona’s Tribal communities. March spelled out his concern that a Pinal County superdistrict — covering the I-10 corridor between Phoenix and Tucson — could become a “wholly owned subsidiary” of the private prison industry.

Granted, the demographic data, primarily the number of prisoners currently incarcerated in federal, state and private prison facilities throughout Arizona taken alone might suggest the problem is not necessarily a big deal. But a realistic scenario, considering several likely very real factors might legitimately support March’s fear.

Florence and Eloy, now roughly halfway between Tucson and Phoenix, already have prisons. Gov. Brewer was very recently in Pinal County to promote another prison development project. Local businesses need local residents (who hold jobs) to spend money. A steady stream of government spending for the employees (to house and guard those prisoners) would provide an environment ripe for parochial interests in such a superdistrict (or more than one) with strong incentive to enact laws to promote higher prison populations and additional facilities.

To me, March’s scenario, in present day Arizona, is realistic and not at all dependent on a “conspiracy theory” type mindset.

Although we often stress the numerical vote dilution caused by prison-based gerrymandering, the impact on policy is dramatic. Giving extra political clout to the prison industry hurts every other policy priority Arizona has.

New documents available from the NY Little v. LATFOR case

Our webpage for the case has just been updated with the most recent round of filed legal documents.

by Leah Sakala, September 15, 2011

I just updated our page on the Little v. LATFOR lawsuit with the newest round of filed documents.

In this case, several New York legislators are suing to overturn New York’s 2010 law that ended prison-based gerrymandering. 15 New York voters entered in the suit as Intervenor-Defendants in order to defend the law. The legal representation team for the Intervenor-Defendants, including attorneys from the Prison Policy Initiative, just filed a new reply.

All the documents for the case, as well as the latest related news updates, can be found on our Little v. LATFOR page.

Prison Policy Initiative celebrates 10 year anniversary: A decade of fighting prison-based gerrymandering

This is the first of a series of posts that tell the story of how PPI grew as an organization and built a national movement to end prison-based gerrymandering.

by Peter Wagner, September 14, 2011

The Prison Policy Initiative was founded 10 years ago today with the goal of turning my academic research on what we now call prison-based gerrymandering into a national discussion of how prison counts impact redistricting. We’ve come a long way! In this and subsequent posts, I wanted to tell the story of how the Prison Policy Initiative grew as an organization and built a national movement to end prison-based gerrymandering.

Ten years ago, I was in law school wrapping up an almost year long independent study project with Professor Jim Gardner that linked felon disenfranchisement to what we now call prison-based gerrymandering. My paper, “Prisoner disenfranchisement and state legislative redistricting in New York State: Electoral appropriation and the return of the 3/5ths clause” had the potential to change how our electoral system works, but it needed an audience.

I, along with UMass PhD candidate Stephen Healy and Smith College student Sarah Kowalski, founded the Prison Policy Initiative ten years ago, building a platform to transition my academic paper into a policy paper. Six months later, I was testifying before the New York State legislature telling them about prison-based gerrymandering and urging them to start the redistricting process over with better data that met the state’s constitutional definition of residence. The legislature ignored me at the time, but nine years later, the legislature took our advice.

Over the course of 7 months, we turned my academic paper into what the Prison Policy Initiative eventually released as Importing Constituents: Prisoners and Political Clout. The biggest challenge we faced was learning how to explain the connections between the Census, redistricting, disenfranchisement and vote dilution in an accessible way. In an encounter that would change our strategy forever, we got a huge boost from a trained communicator in the media.

While Stephen, Sarah and I were working on the report, the Sentencing Project’s Marc Mauer introduced me to Jonathan Tilove, then a correspondent for Newhouse News Service covering race and immigration, who was doing a feature-length piece about how Census counts affect districting. I shared my academic paper with Jonathan and spent hours discussing it with him. He wrote an article that’s still timely today: “Minority Prison Inmates Skew Local Populations as States Redistrict,” which linked the impact of what we now call prison-based gerrymandering on state level redistricting to the impact on county and municipal redistricting.

Prior to Jonathan’s article, explaining my research used to take hours. His piece helped us succinctly explain who benefits from prison-based gerrymandering. For example, in a single clear sentence Jonathan powerfully summarized one concept that used to take me 15 minutes to explain. Many of the innovations in Jonathan’s article informed how we constructed our “Importing Constituents” report, and its discussion of intra-rural impacts inspired our strategy for the next decade.

Arizona Independent Redistricting Commission wrangles with prison-based gerrymandering

Arizona's Redistricting Commission has announced that it will be cognizant of prison-based gerrymandering during the redistricting process, and will exclude incarcerated populations for the purposes of evaluating majority-minorty districts.

by Leah Sakala, September 14, 2011

It looks like this time around Arizona is paying attention to the issue of prison-based gerrymandering.

At a meeting this week, the Arizona Independent Redistricting Commission recognized that counting incarcerated populations as residents of the districts in which they are confined could have a harmful effect on Arizona democracy. The meeting included technical and legal briefings, as well as compelling testimony from Mohur Sidhwa and Jim March.

After a lengthy discussion about the issue and various solutions, the Redistricting Commission promised to keep in mind the potential distortion caused by counting incarcerated people in the wrong place. Commissioner Richard Stertz explained that in particular the commission

…[doesn’t] want to give any indication of creating a non-voting population in a particular legislative district that would lead those that can vote into a hyper-majority by virtue of having so many prisoners in a particular legislative district.

The Redistricting Commission also clarified that it would exclude prisons from its Voting Rights Act Section 5 analysis in order to avoid creating “artificial majority-minority districts” comprised largely of non-voting incarcerated populations. As the Commission’s redistricting expert Bruce Adelson emphasized,

The election analysis in determining what are effective majority-minority districts where minorities have the opportunity to elect, as we’ve talked about, cannot include felons who are incarcerated because they can’t vote.

Prison-based gerrymandering was originally not on the Commission’s agenda. But the Commission’s recent announcement followed a new round of public attention to the problem. In particular, Amanda Crawford wrote a great article raising the issue in Phoenix Magazine, and as I blogged last month, AZBlueMeanie has been writing about the problem on Blog for Arizona. There has also been repeated detailed testimony at Commission meetings from Jim March of BlackBoxVoting and others arguing that avoiding prison-based gerrymandering is both advisable and technically feasible.

Video footage of the September 8, 2011 hearing is available on the Arizona Independent Redistricting Commission’s website.