Help End Prison Gerrymandering Prison gerrymandering funnels political power away from urban communities to legislators who have prisons in their (often white, rural) districts. More than two decades ago, the Prison Policy Initiative put numbers on the problem and sparked the movement to end prison gerrymandering.
Last month, Jacqueline Berrien passed away at the age of 53. The NAACP LDF has an excellent essay about her life and work with lots of links to other remembrances of this important civil rights leader, but I wanted to add one more.
Before Jackie was Chair of the United States Equal Employment Opportunity Commission, she was a litigator for the NAACP Legal Defense and Education Fund. While there, she took a 3-year break from the LDF to work as a Program Officer for the Ford Foundation where she helped launch the movement against prison gerrymandering.
In late 2002 and early 2003, when the term “prison gerrymandering” did not yet exist and most politically savvy people had not even considered the implications of how the Census Bureau counted incarcerated people, Jackie was paying very close attention.
In October 2002, Jackie was moderating a plenary session at a large conference in Washington D.C. about felony disenfranchisement. When a panelist did not know how to respond to an audience member asking a question about the political effects of the Census Bureau’s prison counts, Jackie interjected to say that she understood that there was a new report about this problem and that its author, Peter Wagner, had signed into the conference. She invited me to stand up and introduce myself to the attendees. Many of the connections made at that conference formed the core of our work for many years to come.
In April of 2003, I was presenting my research at the Critical Resistance Conference in New Orleans, and Jackie attended my session. Even though Jackie needed to miss the bulk of my presentation, she asked the first question, a question that framed the essential strategy question for our movement:
How could an urban-dominated movement have any chance of success at getting incarcerated people counted at home if the political party that is associated with rural America currently controls all three branches of government? The answer, of course, and the foundation for the important group discussion that followed was that it shouldn’t be an urban dominated movement.
That June, Jackie funded a Brennan Center for Justice-organized convening of criminal justice advocates, civil rights leaders, and redistricting experts to hear the preliminary research results that Eric Lotke and I were having in our respective Soros Justice Fellowships on this topic and to decide on a collective course of action. This meeting set in motion all of the workandvictoriesthatfollowed.
2015 saw the passing of Bertha Finn, one of the unsung heros of the movement to end prison gerrymandering. Bertha Finn, who was a retired journalist and county clerk as well as an accomplished amateur historian, was instrumental in organizing a 2007 referendum to change the form of government in Anamosa Iowa to end the practice that we later came to call “prison gerrymandering”.
Anamosa Iowa became the symbol for the national campaign to end prison gerrymandering because the impact there was so extreme. A large prison made up just about an entire city council district. One of the few actual residents of the district was shocked to come home one day and find he’d been elected to city council by two write-in votes; one cast by his wife and the other by a neighbor.
Most people reading this blog will be familiar with Anamosa, but not Bertha’s name. She’s mentioned in only one national article, and she declined to be photographed when the Public Welfare Foundation was writing an article about Anamosa and declined to be interviewed for the prison gerrymandering segment of the Gerrymandering documentary. I don’t think she liked press attention, but on both of my trips to Anamosa she generously hosted me for conversation at her home.
In particular, Bertha filled in so many of the gaps in my knowledge about how long Anamosa residents had been aware of the problem and the efforts taken to fix it. (Most communities faced with drawing a district that would have a larger incarcerated population than resident population according to Census data would do the obvious thing and adjust the data to reflect the actual resident population. But Iowa is one of about three states where state law requires municipalities to use the Census for redistricting with no adjustments.) Eventually, Anamosa found a creative solution: it could change the form of government so that each elected official would represent the entire city.
A few years later, the city of Clarinda Iowa followed Anamosa’s lead and also abolished its wards as a way to address prison gerrymandering. My conversations with Bertha inspired a lot of my thinking about whether districts always make sense in small communities. Traditionally, districts are seen as the best way to protect the interests of minority communities, but sometimes, in very small communities, districts can unnecessarily divide up political influence. For example, Bertha correctly believed that moving to an at-large system would increase the odds that women would be elected to the city council because supportive women in other districts would be able to vote for the candidate. (For more on Anamosa, Clarinda and similar cities moving to at-large systems and some ideas on other alternative voting systems that could be helpful, see Three cities say goodbye to both wards and phantom constituents. Sadly, Bertha passed before I could share that article with her.)
While I wrote about Anamosa a lot, there was much I didn’t know and Bertha was generous with her time and memories. I learned of her February passing this Spring while were we preparing to post online a collection of clippings she had sent us years earlier from the Anamosa Gazette about the history of advocacy against prison gerrymandering in the city:
A recent New York Times column suggests that our work with the ACLU against prison gerrymandering in Rhode Island and Florida is somehow at odds with the goal of representational equality for communities with non-citizen populations in Texas – a goal that we also share with the ACLU. But, this apparent contradiction disappears when you look more carefully at our organizations’ arguments in each case.
Currently, the Census Bureau counts incarcerated people as if they lived at the location of the prison instead of their home addresses. This can indeed result in representational inequality when states and localities use the data for redistricting. But the ultimate goal of reforming prison gerrymandering is not to eliminate incarcerated persons entirely from the population count. Rather, the four organizations that Dēmos is representing as amici curiae want to ensure that incarcerated persons are tabulated at the correct location, as constituents of their own legislators.
Despite this, the New York Times column asserts that our lawsuits in Rhode Island and Florida seek total exclusion of all incarcerated persons from population counts used for redistricting:
[T]he Florida and Rhode Island suits, brought on behalf of voters who said prisons in nearby districts were diluting the value of their votes, did not ask that the prisoners be counted elsewhere, only that they not be counted locally.
This is not correct because the Times is conflating two distinct problems caused by the Census Bureau, and ignoring the remedies that different levels of government are able to provide with respect to incarcerated persons.
In counting incarcerated people at the location of the prison, the Census Bureau makes two distinct errors that affect redistricting: 1) it fails to count incarcerated people where they reside, and 2) it counts incarcerated people at the location of the facility. A city or county has the power only to correct the second part of the Bureau’s miscount – assigning people to the wrong location – and not the first part – failing to assign them to the correct location. … This data limitation with respect to incarcerated persons in no way suggests that non-voters should be disregarded in redistricting, when such persons have close ties to the community where they are actually counted and cannot even theoretically be counted at some other location by the Census Bureau.
The Evenwel plaintiffs seek to entirely exclude all non-citizens from redistricting counts, regardless of their residence in, and strong ties to, the community in which they are counted. By contrast, the plaintiffs in the Cranston case have made a careful, fact-based determination of where people incarcerated at the facility actually reside, be it in Ward 6, elsewhere in Cranston or outside of the city and want the city’s districts to treat those groups separately.
Simply put, Cranston does not have the authority to fix prison gerrymandering problems outside its jurisdictional boundaries, and so plaintiffs have not sought to force them to do so.
We devote 7 pages of our brief to an explanation of how and why people remain residents of their home address, even when incarcerated. And we contrast that with non-citizens:
[U]nlike incarcerated persons who are counted in the prison location, non-U.S. citizens are counted in communities where they have strong actual ties to other members of the community. Indeed, they often reside and are counted in households that include family members who are U.S. citizens. Unlike incarcerated persons, noncitizens and other non-voters are able to participate in the economic and civic life of the community where they are counted – they shop at grocery and clothing stores, gas stations and other establishments; attend religious services and support religious establishments; work and pay taxes in the community; and engage in civic and volunteer activities. None of these avenues for community engagement are available to the incarcerated persons who are counted as residents of the prison where they are housed.
These differences are why our brief says that the Evenwel plaintiffs are drawing a “false parallel” to prison gerrymandering.
If you’ve been keeping up on current events in redistricting, chances are you’ve been hearing a lot about the Evenwel v. Abbott case recently. Here’s the rundown from a prison gerrymandering perspective, with our partners at Dēmos:
The U.S. Supreme Court is poised to hear a case in which litigants in Texas are asking the Court to undermine the core constitutional principle of “one person, one vote.” In this case, Evenwel v. Abbott, the plaintiffs are asking the Court to require states, when drawing district lines, to ignore anyone not already eligible or registered to vote. Their case will be argued in the Court’s current term.
Dēmos opposes this misguided effort to treat non-voters as non-persons under the Fourteenth Amendment. To assist the Court in understanding the full ramifications of the case, Dēmos has authored a friend-of-the-court brief addressing an issue that particularly affects incarcerated persons – the issue of “prison gerrymandering.” The problem of prison gerrymandering, where incarcerated people are used to pad out districts that host prisons, is not directly at issue in the Evenwel case, but the plaintiffs in Evenwel have invoked the issue of prison gerrymandering as if it supported their arguments for discounting non-voters. Our “friend of the court” brief explains why they are wrong.
The brief was filed on behalf of four organizations whose members have long fought prison gerrymandering, DARE (Direct Action for Rights and Equality), EPOCA (Ex-Prisoners and Prisoners Organizing for Community Advancement), VOCAL-NY (Voices of Community Activists & Leaders – New York), and VOTE (Voice of the Ex-Offender). Dēmos was joined as counsel on this brief by the Prison Policy Initiative.
Currently, the Census Bureau counts incarcerated people as if they lived at the location of the prison instead of their home addresses. This can indeed result in representational inequality when states and localities use the data for redistricting. But the ultimate goal of reforming prison gerrymandering is not to eliminate incarcerated persons entirely from the population count. Rather, the four organizations that Dēmos is representing as amici curiae want to ensure that incarcerated persons are tabulated at the correct location, as constituents of their own legislators.
Our brief explains why treating incarcerated persons as “residents” of the prison where they are involuntarily detained, instead of their home communities, creates serious inaccuracies and distorts redistricting, whether or not the incarcerated persons are eligible to vote. It further explains how creating a constitutional requirement to exclude non-voting populations from the population base used for redistricting would not end prison gerrymandering, and in fact could make things worse.
“Prison population affecting Florida’s redistricting fight” in yesterday’s Miami Herald explains how the current way the Census Bureau counts incarcerated people is making it difficult for the legislature to draw functional minority opportunity districts:
The last Census counted more than 160,000 people in Florida correctional facilities, and they cannot vote. But they can skew how districts are drawn, and ultimately who represents the state in the U.S. House of Representatives. That is exactly what U.S. Rep. Corrine Brown, D-Jacksonville, is convinced is happening in North Florida.
Brown said the proposed new Congressional District 5 stretching from Jacksonville to Tallahassee will see a reduction in the percentage of black residents who are of voting age — a key measure used to ensure black voters can elect who they want to represent them in Congress — from 50 percent to 45 percent under the map that passed the House on Tuesday and is expected to be before the Senate on Wednesday.
But Brown, who is suing the Legislature to block the redrawing of her district, said the reduction of the black voting age population in her district could be even greater because her new district would have 17,000 prisoners in it — giving it one of the highest prison populations in the state. Her current district has just 10,000.
Florida is redistricting again because the Florida Supreme Court recently invalidated the current map and legislators are having a hard time disentangling Census’s detailed data on voting age and race from the Bureau’s counts of incarcerated populations. And, as the article reports, some of the attempts to increase the Black Voting Age population inadvertently relied on adding even more prisons to the proposed district:
State Sen. Audrey Gibson, D-Jacksonville, proposed a plan that would increase the black voting age population in Brown’s district to 46.6 percent. Gibson cited concerns over the prisons as one of her points of contention, yet her proposal, which is scheduled to be considered by the Senate on Wednesday, would boost the number of people incarcerated in Brown’s district to nearly 23,000.
Sen. Bill Montford, a Tallahassee Democrat, took his own shot at redrawing the district, too. But while his plan increased the black voting age population, it would have required putting almost 30,000 inmates into Brown’s district.
To make these kinds of calculations easier for map drafters, we combine the Bureau’s data on incarcerated people into accessible formats and make those available through our data page. And of course, if the Census Bureau changes their methodology to count incarcerated people where they reside in 2020, these sorts of problems will be avoided.
Minnesota’s election omnibus reform bill, SF 455, passed the senate yesterday. The bill includes ending prison gerrymandering among other reforms. For more information on the prison gerrymandering provisions (Article 6) of the bill check out my written testimony. The bill now awaits action in the House, stay tuned.
In discussions about prison gerrymandering, we’re often asked: “Does the Census Bureau’s prison count impact state and local funding allocations?”
Although it might seem counterintuitive, the answer is, “Generally, not at all. Prison gerrymandering hurts democracy and vote equality, not money flows.”
Eric Lotke, President of the Prison Policy Initiative Board, spent a year-long fellowship looking at this question. He describes his findings in our newest video:
Rhode Island’s House Judiciary Committee recently held a hearing on H 5155, a bill to end prison gerrymandering. (The Senate just passed their version of the bill last month.)
I wanted to share testimony given by Steve Brown of the Rhode Island ACLU and John Marion of Common Cause Rhode Island. Brown jumps right in to the specifics, discussing with Representative Edith Ajello how prison gerrymandering is inconsistent with state election law:
And this isn’t some quirk of Rhode Island law, in fact most states have similar laws; explicitly stating that an incarcerated person’s home continues to be their legal residence regardless of where they are confined.
And further expounding the illogic of prison gerrymandering in complementary testimony, Marion provides great context for how prison gerrymandering fits into the larger picture of the evolution of proportional representation and redistricting.
For details on Rhode Island’s prison gerrymandering problem check out PPI’s written testimony.
And a special thanks to Grace Mendenhall in our Young Professionals Network for her help with formatting the videos.
Several people also testified in person, including two of the bill’s sponsors, with Senator Shields pointing out that “since we’ve a little bit of distance between redistricting this might be the exact opportune time to take this on”. I hope the committee agrees.
Senator Shields and Representative Bentz testify in support of SB 331 before Oregon’s Senate Committee on Rules, March 10, 2015
The City used to exclude prison populations when redistricting, but a mid-decade charter revision accidentally tied their hands when the 2010 round of redistricting rolled around. The new charter language — based on the model charter published by the National Civic League — pegged McAlester’s redistricting data to population data “according to the most recent Census”, which of course tabulated people incarcerated at the two state correctional facilities in town as if they were actual residents of McAlester. This resulted in the city feeling forced into drawing a district where people incarcerated by the state accounted for nearly 60% of the population. This means that McAlester residents who live in that city council district get more than twice as much representation on the city council as any other city resident.
And so we arrive at March of 2015, when the residents of McAlester voted once again to finally end prison gerrymandering. And that’s great news, for McAlester. But there are many cities that lack McAlester’s persistent pursuit of equal representation. And quite frankly, America’s cities should not be put in a position where they have to question Census data’s suitability for redistricting.
The Census Bureau should count incarcerated people at home, rather than as residents of the location of the prison. This national solution would not only end prison gerrymandering for the rest of the cities still struggling with prison gerrymandering but also help the cities (and states) who already take the time and effort to adjust the Census Bureau’s redistricting data on their own. And as an interim measure, the The National Civic League should amend its model city charter to encourage cities to avoid prison gerrymandering by making their own data adjustments.
Senator Shields and Representative Bentz testify in support of SB 331 before Oregon’s Senate Committee on Rules, March 10, 2015
