What the Census Bureau proposes to do on prison gerrymandering and why it is inadequate

We offer our analysis.

by Peter Wagner, July 1, 2016

Yesterday, the Census Bureau disappointed hundreds of voting rights, civil rights and criminal justice reform organizations by declaring that it will continue to count incarcerated people at the facility, even though it causes prison gerrymandering.

The purpose of this blog post is to address the two positive proposals the Bureau made, put them into context and explain why they are nevertheless inadequate.

First, the context to yesterday’s disappointment. Last year the Census Bureau sought comment on its residence rules. In response, the Bureau was flooded with comments from urban and rural stakeholders explaining how prison gerrymandering harmed democracy in their state or local government and how the Census Bureau was in the best position to provide a remedy. In yesterday’s Federal Register Notice, which announced the new proposed rules the Bureau acknowledges that most of the comments they received were related to how the residence rule applies to people in prison, and that virtually all called for a change in the rule. They even summarized some of the arguments for change before declaring, without explanation, that they will continue to count incarcerated people in the wrong place.

The Bureau’s argument is that simply that “[s]tates are responsible for legislative redistricting” so it is not the Bureau’s fault that their flawed data undermines voting equality. Never mind that the data doesn’t meet the Bureau’s own goals for counting people “in the right place”, the Bureau will continue to collect data in a way that both the Bureau and many of their data users – and a growing number of federal courts — know is flawed.

There are, however, two encouraging announcements within the Federal Register notice that require some explanation and response:

1. The Census Bureau re-affirmed its earlier commitment to publish group quarters data within the PL94-171 redistricting data. This information is essential to let redistricting officials know where prison facilities are — because this is more difficult than you might expect — and is critical to the efforts of some rural counties that wish to minimize the effects of prison gerrymandering by basing their districts on the population of their county not including the prison. For the 2010 Census, the Bureau agreed to publish this data much earlier than in previous decades, but they were not able to include it within the PL94-171 redistricting data. For this decade, the Bureau proposes to do exactly that, which will both make the data easier to find and will make the data more useful to jurisdictions like New Jersey and Louisiana that have extremely tight redistricting deadlines.
2. The Bureau pledged to, on request, produce for states a special dataset that counts incarcerated people at home. The state would need to provide the necessary data, and the Bureau would produce a special dataset that the state could use. The Bureau doesn’t have any of the details on how this would work and the relevant requirements and schedules, but if this program worked smoothly, it could make it slightly easier for a state that wants to end prison gerrymandering to do so. (The experience of Delaware last decade both illustrates the value and pitfalls of this approach. The state had to postpone their law ending prison gerrymandering because the state claimed they couldn’t find a vendor to do the necessary adjustment in time. On the other hand, the state ran out of time because, like most states, they leave critical redistricting decisions to the last minute.)

Unfortunately, the Bureau’s proposal to shift responsibility for ending prison gerrymandering to the states is inadequate.

As we explained to the Census Bureau in our July 2015 comment letter:

The Census Bureau cannot leave fixing the prison miscount to the states.

However, all of this interest and activity [in hundreds of counties and dozens of states discussed at great detail earlier in the letter] in ending prison gerrymandering does not mean that the Census Bureau can leave this decision to the data users. As you know, the Massachusetts legislature concluded that that state’s constitution prohibits it from passing legislation ending prison gerrymandering. For that reason, the legislature sent you an earnest bipartisan resolution calling on you to count incarcerated people at home in the next census.[31]

These ad hoc solutions are even more out of reach for local governments. Many of the most dramatic instances of prison gerrymandering are concentrated in just a handful of states like Minnesota, Tennessee, and Wisconsin, where state constitutions or state law appear to prohibit the cities and counties from adjusting the Bureau’s data when drawing their districts without regard to the absurd and undemocratic results. For example, the Minnesota statutes declare “When used in reference to population, ‘population’ and ‘inhabitants’ mean that shown by the last preceding federal decennial census”[32] This results in cites like Waseca drawing city council districts that are 34.5% incarcerated, giving every 2 residents who live near the prison the political influence on city council of 3 residents in other parts of the city.

32. A copy of the resolution is at http://www.prisonersofthecensus.org/resolutions/MA-resolution-081414.pdf

33. Minn. Stat. Ann. &Sect; 645.44(8).

In addition, the Census Bureau’s proposal leaves out a key incarcerated group that state officials are unlikely to be able to collect home addresses for: people incarcerated in federal prisons. As Erika Wood explains in her report for Demos, Implementing Reform: How Maryland & New York Ended Prison Gerrymandering, neither Maryland or New York were able to reallocate people incarcerated in federal prisons. Federal Bureau of Prisons officials refused to share the necessary data with Maryland officials, and New York wrote its law on the correct assumption that federal prison officials would not cooperate with the state. State prisons are, without a doubt, the bulk of the correctional pie and the central nexus of the prison gerrymandering problem, but federal and military prisons in places like Kansas can be significant prison gerrymandering problems as well. The Bureau simply can’t shift responsibility for ending prison gerrymandering to the states and call the problem solved.