Evenwel v. Abbott trips over prison gerrymandering, amicus brief sorts out the issues

Prison Policy Initiative joins Dēmos in amicus brief to SCOTUS, tackling prison gerrymandering issues in Evenwel v. Abbott

by Aleks Kajstura, September 30, 2015

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.