Court Asks if Residency Follows Inmates Up the River

by Sam Roberts New York Times, May 13, 2006

For years, New York Republicans have propped up their slim majority in the State Senate partly by seizing on a quirk in the federal census: counting prisoners as residents of the rural districts where they are incarcerated, rather than of the urban neighborhoods where they last lived.

That way, predominantly Republican rural districts wind up with more seats in the state Legislature, since seats are apportioned on the basis of population.

But last week, a federal appeals court in New York hinted that counting prisoners as upstaters might illegally dilute the voting rights of downstaters.

If that legal argument is pursued and upheld, the political implications could be profound. Republicans now have a four-seat margin in the Senate. A shift in only a few seats could give the Democrats, who already control the Assembly, a majority in the Senate, and with it, enormous power over legislative and Congressional redistricting.

Except for a brief hiatus in 1965, Republicans have dominated the Senate since 1939.

States typically use the census to reapportion legislative and Congressional districts. But the impact of this practice is magnified in New York, where most of the inmates come from downstate and are shipped to prisons upstate.

Voting rights advocates estimate that without the inmates, as many as seven upstate Senate districts might have to be redrawn, with downstate picking up some seats.

The issue came up in passing in a lawsuit seeking to give prisoners the right to vote. While the United States Court of Appeals for the Second Circuit rejected that request, it did express interest in the argument that counting inmates upstate dilutes the voting power of minority groups in urban districts, and kicked that matter back to the District Court for consideration.

Eric Hecker, a lawyer who pursued an earlier voting rights case involving inmates, said, “I don’t think there’s any question but that if the prisoners were counted where they lived the legislative districts would be unconstitutional.”

Eric T. Schneiderman, a Manhattan Democrat who is the deputy Senate minority leader, agreed. “The court has clearly remanded to the district judge to consider the voting rights argument — that people who live in districts that are net exporters of prisoners to districts upstate may have a voting rights claim,” he said. “I think it has to be pursued.”

Senator Schneiderman has urged the Census Bureau to change its policy and has introduced legislation that would require the state to use prisoners’ home addresses in apportioning legislative districts.

The 8-to-5 appeals court decision opens a “small window,” said Juan Cartegena, general counsel of the Community Service Society, which joined the appeal.

“It’s an opening that we really don’t know what to do with yet,” he said.

Peter Wagner, executive director of the Prison Policy Initiative, a Massachusetts-based research and advocacy group, suggested that wherever the window leads, the mere mention by the court seems meaningful.

“I think it is a significant signal that the New York’s reliance on bogus census counts of prisoners creates a serious problem for democracy,” he said. “The court has given us a great opportunity.”

Noting that the same appeals court also ruled that an inmate whose home was in California but is imprisoned in New York does not have standing to sue here, Mr. Wagner added: “He remains a resident of California, much like the 43,760 residents of New York City incarcerated upstate remain residents of New York City.”

Mr. Wagner estimated that while 66 percent of state prisoners come from New York City, 91 percent of them are imprisoned upstate. “In one assembly district,” he wrote, “seven percent of the reported census population is actually prisoners from other parts of the state. The votes of each group of 93 residents in that district are unconstitutionally equated with the weight of 100 voters elsewhere in the state who do not happen to live near a prison.”

The average population of Senate districts is about 306,000. In one rural district, according to Mr. Wagner, not counting the nearly 13,000 or so prisoners as residents would reduce the population to about 286,000, compared with more than 320,000 in some Queens districts.

Just by calling attention to what amounted to a footnote in the advocates’ case, the judges almost seemed to be prodding the plaintiffs, and the lower court, to examine the case against counting prisoners where they are incarcerated in drawing legislative districts.

“That’s the way I read it,” said Michelle M. Aronowitz, the deputy solicitor general, who successfully defended the state.

The advocates argued that because most inmates are black or Hispanic, disenfranchising convicted felons is not only racially discriminatory, but also waters down the voting power of people who live in the same districts that the prisoners hail from or where parolees now live. But the appeals court was uncertain whether the advocates for prisoners and parolees also claimed that ordinary citizens are disenfranchised because of the way inmates are counted for reapportionment.

“Inasmuch as this question was neither considered by the District Court nor briefed by defendants,” the court continued, “we intimate no view on the question and remand to the District Court to consider whether plaintiffs have indeed properly raised the claim, and, if so, to rule on the merits of the claim.”

The Census Bureau has said changing the way it counts would be too difficult.

Senator Schneiderman introduced legislation last year that would make counting for legislative apportionment purposes conform to the New York Constitution, which says that “no person shall be deemed to have gained or lost a residence, by reason of his presence or absence … while confined in any public prison.”

John McCardle, a spokesman for the Senate Majority Leader, Joseph L. Bruno, an upstate Republican, said yesterday: “What we do with the lines and with reapportionment is based on the law, and this is what the law allows for. I don’t want to equate students with prisoners, but we count both where they are.”