Kentucky redistricting proposal took steps to minimize prison gerrymandering

Excluding the federal prison population for redistricting purposes would be step towards minimizing the harm of prison gerrymandering in Kentucky.

by Peter Wagner, March 11, 2013

It looks like the Kentucky Legislature will wrap up without passing a redistricting plan — their proposed map was declared unconstitutional last year — but a plan that passed the House deserves some comment on this blog because it takes an important, if partial, step towards reducing the harm of prison gerrymandering.

This effort is not to be confused with BR219 which would have required redistricting on the basis of Census Bureau data corrected to tabulate incarcerated people at their homes of record. Under BR219, the Department of Corrections would collect home of record information as people enter the prison system and the state would created a redistricting data set by adjusting the Census data accordingly. The bill would then have required both state and local governments to use that adjusted data to draw districts in 2021 I testified in support of BR219, and I received bi-partisan support from the Kentucky General Assembly Task Force on Elections, Constitutional Amendments, and Intergovernmental Affairs.

Given that the legislature is already years-late to pass a new map, it wasn’t possible to determine the home addresses of people in prison like Maryland and New York did and completely eliminate prison gerrymandering. Last year, we urged some states in the midst of redistricting to, as an interim solution, consider the incarcerated populations to be “at-large” inhabitants of the state rather than as residents of districts where they lack legal residence. In this way, the state can eliminate the bulk of the harm of prison gerrymandering — the vote enhancement in districts that contain prisons — in a very short amount of time.

One of the House’s proposed maps took a small step forward in this vein: The House proposed to remove the federal prison population when redistricting. The House justified this on the basis that federal prisoners are overwhelmingly from out-of-state, so it didn’t make sense to credit them to a handful of Kentucky Census blocks where they did not actually reside.

The Senate — which hasn’t yet proposed their own map — cried foul, arguing that it was improper for the state legislative districts to be drawn with different data than that used for Congressional districts. Some of the commentary explained that, there is extensive precedent for using different data to drawn Congressional districts, and I’d point to New York’s law to end prison gerrymandering and Kansas’ adjustment of the military and student population. But the most useful explanation of the principle that different levels of government can use different datasets to draw districts might be right in Kentucky: The McCreary County Fiscal Court refused to use the United States Penitentiary population when drawing its Fiscal Court districts.

McCreary County evaluated the Census’ data and concluded it was a bad idea to blindly rely on data that did not accurately describe the county’s residents. The county saw that drawing districts based on unadjusted data would dilute the votes of everyone who didn’t live next to the prison.

When the Kentucky Legislature drew the Congressional districts, however, they didn’t think about the matter and drew districts that diluted the votes of most state residents to the benefit of a few. Kentucky cannot achieve consistency across all levels of government until the next redistricting cycle, but the legislature can still pick the better choice between approaches already taken in the state.

Although it sounds like Kentucky won’t be passing a redistricting map this session, when the time comes, I would suggest following the rural county that put some thought in to what data to use over using data that the state now knows is not as good as it could be.

Bonus: There is a case from last decade out of Oregon (Hartung v. Bradbury) where the Supreme Court of Oregon instructed the Secretary of State that he was in fact *required* to correct obvious Census Bureau mistakes, in this case a federal prison counted in the wrong spot. The Court explained that “the Secretary of State incorrectly has assumed that, in determining the population of a district in the face of an admitted error in the census data, he nonetheless must rely solely on official census data. (332 Ore. 570, 598; 33 P.3d 972, 987.) The Court ruled that the state cannot use Census data it knows to be incorrect.