Prison-based gerrymandering's striking resemblance to the infamous three-fifths clause

The original U.S. Constitution used enslaved people to grant extra political clout to the states with lots of slaves, shifting the balance of power. This dynamic has a contemporary parallel.

by Leah Sakala, September 9, 2011

I was recently watched some striking footage of a Wisconsin Assembly hearing from September, 2009, about Assembly Joint Resolution 63 to exclude incarcerated persons from redistricting data. The video begins with a discussion of how to count incarcerated people in Wisconsin, but then quickly turns into a heated debate about how prison-based gerrymandering relates to our nation’s conflicted history with the concepts of personhood and equal representation. To me, the fact the conversation veered into such fundamental questions shows how sometimes the solutions to prison-based gerrymandering can be counterintuitive.

Here’s why:

When incarcerated people are counted as residents of the district in which they are incarcerated, the actual residents of that district get undue additional political clout and the voters who live everwhere else lose out. The ideal solution is to completely solve the problem by counting incarcerated people at their home addresses. But, although it may sound strange at first, the second best option is for incarcerated populations to be removed from redistricting data altogether. The video I watched was about this second approach. Wisconsin 2009 Assembly Joint Resolution 63 sponsored by Representative Fred Kessler proposed to remove prison counts from Wisconsin’s redistricting data.

But this idea didn’t sit well with Representative Kleefisch. Given the United States racially disproportionate incarceration rates and pernicious history of denying racial minorities their civil rights, he asked, doesn’t the proposal to exclude prisoners from redistricting counts hark back to the infamous practice of denying certain individuals their full personhood?

Representative Kelda Helen Roys responded to this question by drawing an apt historical connection to the infamous 1787 constitutional clause that counted each slave as three-fifths of a person for the purposes of Congressional redistricting, even though they were denied the right to vote. The three-fifths clause had the effect of using slave population numbers to artificially beef up the political power of the Southern, white, property-owning voters who were invested in maintaining and expanding the slave system. But the problem with the three-fifths clause wasn’t that the slaves were counted as only a fraction of a person. After all, since their “political clout” went right into the hands of the very people who exploited them, the political distortion would have been even greater had they been counted as full people. The problem was that slave populations were used to artificially inflate the political power of the very same people who went to great lengths to deny them their right to personal sovereignty, much less their right to vote.

When a government engages in prison-based gerrymandering, incarcerated people, who disproportionately come from minority and urban communities, are stripped of their right to vote but still included in the population counts of the disproportionately white districts in which they are incarcerated. Their political clout is essentially handed through the bars to the real residents of the community that contains the prison, giving certain people more political say simply by virtue of their residential proximity to a large prison. This also gives the legislators who represent districts that include prisons the power to use incarcerated people’s bodies to count against their own interests by supporting punitive criminal justice legislation, as such representatives are utterly free from accountability to their non-voting “constituents” behind bars.

It’s just as unfair as it sounds. And Representative Roys’s observation about the connection between prison-based gerrymandering and the three-fifths clause isn’t abstract history. Let’s look at a contemporary example.

California Senate passes bill to end prison-based gerrymandering

Prison Policy Initiative and Demos applaud the California Senate for passing AB 420, a bill to end prison-based gerrymandering.

August 31, 2011

Prison Policy Initiative and Demos Applaud Passage Of Prison Redistricting Legislation By California Senate, Call On State Assembly To Pass Law And Correct Unjust Census Figures

FOR IMMEDIATE RELEASE
Contact: Peter Wagner, (413) 527-0845,
Anna Pycior, apycior@demos.org, (212) 389-1408

Demos and the Prison Policy Initiative, two national public policy organizations, applaud the California Senate for passage yesterday of AB 420, a bill to end prison-based gerrymandering. Introduced by Assemblymember Mike Davis, the legislation would end the practice of treating incarcerated individuals as residents of the districts where they are temporarily confined, for redistricting purposes.

This legislation directs the Department of Corrections and Rehabilitation to report the last known addresses of incarcerated persons to the Secretary of State and the Citizens Redistricting Commission. The data will then be used to count incarcerated individuals as members of their home communities. If passed again by the California Assembly, the new rule would go into effect in the 2020 redistricting cycle.

“We applaud the California Senate for recognizing that it is a violation of California state law to continue the state’s practice of counting incarcerated individuals as residents of their prison localities for redistricting purposes,” said Brenda Wright, Democracy Program Director at Demos. “According to the California Election Code, ‘A person does not gain or lose a domicile solely by reason of his or her presence or absence from a place while… kept in an almshouse, asylum or prison,’” Wright added.

Poll: New Yorkers of all regions and parties oppose prison-based gerrymandering

Majorities of both parties, in upstate and downstate New York, say that prison inmates should be counted as residents of their home districts.

by Peter Wagner, August 17, 2011

A Quinnipiac University poll released last week reported that New York State

voters say 60 – 25 percent that prison inmates should be counted as residents of their home districts, not of where they’re imprisoned. Republican and upstate voters support counting inmates in their homes, not their prisons.

The poll was conducted from August 3 – 8, with 1,640 registered voters. The margin of error was +/- 2.4 percentage points.

On August 4, New York’s redistricting task force announced — finally — that it would comply with state law and count incarcerated people at their home addresses. Nine state senators, however, are still suing to overturn the law.

Wisconsin sees dramatic prison-based gerrymandering in new state, county, city districts

New districts in Wisconsin to set new records for prison-based gerrymandering.

by Peter Wagner, July 18, 2011

The Wisconsin legislature is rushing through a redistricting plan so they can lock in the maps before the scheduled recall elections can change who has the power to draw district lines. In that rush, prison-based gerrymandering is poised to have an even greater impact on state, county and municipal districts than it did a decade ago.

The Census Bureau counts Wisconsin prisoners as if they were residents of the communities where they are incarcerated, even though they can’t vote and remain legal residents of the places they lived prior to incarceration. Crediting thousands of people to other communities has staggering implications for Wisconsin’s democracy, which uses the Census to apportion political power on the basis of equally-sized state and county legislative districts.

Wisconsin’s 53rd Assembly district has the highest concentration of prisons in the state. The 53rd District claims 5,583 incarcerated people as residents of the district, even though state law says that incarcerated people remain residents of their homes. All districts send some people to prison, although some districts send more than others. But not all districts have prisons, and concentrating 23,000 prisoners in a handful of districts enhances the weight of a vote cast in those districts and dilutes all votes cast elsewhere.

In Wisconsin, this impact is largest in District 53, where without using prison populations as padding, the district would be 10% below the required size. This gives every 90 residents of the 53rd district the same influence as 100 residents of any other district in the state.

If that seems insignificant, consider that the Supreme Court allows districts to have populations that are 5% too large or small if the state can protect some other legitimate state interest by doing so. The federal judges who have for decades drawn Wisconsin’s state legislative districts have had an even higher standard, allowing only a 1% deviation from strict population equality. The Republican majority of the legislature which drew the new districts took an even higher standard in the Assembly, drawing districts that are, by Census counts, no more than 0.4% too large or small.

Does avoiding prison-based gerrymandering cost a city revenue?

We explain why adjusting the census for redistricting purposes to avoid prison-based gerrymandering will not affect revenue sharing or other grants.

by Peter Wagner, June 22, 2011

We’ve had a number of inquiries recently from officials who want to use the Census Bureau’s Advance Group Quarters Summary File to remove the prison populations prior to redrawing county or municipal district lines, but who faced concerns that drawing fairer districts would cost them state or federal revenue. I thought excerpts from our recent responses would be useful to others looking in to the issue.

From Wisconsin:

You asked if the city or county removes the prison population from the city or county districting totals, would there be an effect on shared revenue funding?

The long answer is no. The Wisconsin shared revenue plan is codified in Wis. Stat. §§ 79.005-79.095. The aid is distributed based on formulas that take population into account. Population is defined by §79.005(2) by reference to population determinations made by the Department of Administration pursuant to §16.96. Pursuant to §16.96 the Dep’t of Administration makes population estimates, based on federal census data and any special census conducted under contract with the Census Bureau. Municipal redistricting data is not within the scope of the meaning of “population” as that word is used in formulas for shared revenue aid distributions.

The shorter version is also no, because shared revenue funding is not dependent upon county/city redistricting data.

From Illinois:

You asked about the impact of excluding the prison population on motor fuel tax revenues which are based in part on the Census. I’ve looked at many parts of the Illinois funding formulas, and this morning again looked at 5 ILCS 505 Section 8. I agree with your research that changing the data used for redistricting would not affect the funding distribution. The funding distribution is based on census data, and whatever data you use for local redistricting would not change the underlying Census data.

In a letter to a different official in Illinois, I explained more of the background:

In general, prison populations have very little effect on the most lucrative formulas that support education or anti-poverty programs because those formulas are highly tailored to the need. Prison populations are not included in how the government calculates “household income” or “poverty” and most of the education formulas are based on the number children in the census or the number of children enrolled in the schools, etc., which the prison populations also do not affect.

I know that this may be surprising, particularly given the Census Bureau’s overly simplistic rhetoric about why it is important for people to fill out Census forms. They are correct, of course, that each person on average represents about $1,400 per year in grants. But the overwhelming majority of this is block grants to the state of Illinois and not to individual municipalities. Prison populations play only a very minor part in the remainder, and none of those calculations are changed by how a county or municipality chooses to draw its legislative lines.

Media’s back to basics guide: redistricting and prison-based gerrymandering

Back to basics coverage of the redistricting process and the issue of prison-based gerrymandering, as the nation starts to redistrict.

by Aleks Kajstura, June 13, 2011

A few recent news stories provide a great introduction to the redistricting process, and prison-based gerrymandering specifically:

The National Radio Project’s Making Contact – June 11 edition is a great introduction to the redistricting process in the United States, and some of the issues that it creates. The program includes a segment on prison-based with Peter Wagner.

New America Media did an interview with Dale Ho, from the NAACP’s Legal Defense Fund, which provides a slightly more advanced introduction to redistricting and prison-based gerrymandering. New American Media also published a written piece by Kenneth J.Coooper that summarizes the legislative efforts to end prison-based gerrymandering thus far and gives an overview of current developments.

Justin Levitt explains prison-based gerrymandering

Justin Levitt leads a discussion about the strategy and rationale of ending prison-based gerrymandering with advocates at the Redrawing the Boundaries: A Midwest Redistricting Discussion in October 2009.

by Peter Wagner, May 23, 2011

I just discovered video of a presentation that Justin Levitt made at the Redrawing the Boundaries: A Midwest Redistricting Discussion in Chicago in October 2009. He explains the problem of prison-based gerrymandering and then leads a detailed discussion with advocates about the strategy and rationale for reform. Although dated, it’s worth watching.

Questions include:

• How are incarcerated people counted?
• How are college students and the military counted?
• Is there any data on how many prisoners–during the census period–return to their home communities, and as a consequence should be counted in their home communities?
• If a state government elects to alter its prison count, when does that take place?
• What’s the incentive for someone who benefits from a prison population to demand a census recount?
• What are the primary effects of counting incarcerated people where they are incarcerated?
• Does counting incarcerated people differ when it comes to congressional districts–versus state and local districts?

For more with Justin Levitt, see my podcast “Address Unknown” Podcast Episode #1 where we discuss the optimal way to structure a bill to eliminate prison-based gerrymandering.

Organizations stand against prison-based gerrymandering

Formal resolutions and recommendations from organizations and legislative bodies regarding prison-based gerrymandering are now compiled on our site.

by Aleks Kajstura, April 29, 2011

Many organizations and legislative bodies have made formal resolutions and recommendations critical of the Census Bureau’s prison count and condemning the practice of prison-based gerrymandering.

Our resolutions page gathers these resolutions from organizations like the NAACP, the Census Bureau’s own Advisory Committee, city councils and other local governments. This new page also has some sample resolutions that are a great starting-point for introducing a resolution in your organization or town, city, county or state legislature.

Advocates Hail Census Bureau’s Release of Data to Assist in Correcting Prison-Based Gerrymandering

New Data Will Boost State and Local Efforts to Draw Fairer Districts

April 20, 2011

FOR IMMEDIATE RELEASE April 20, 2011
CONTACT:
Tim Rusch, trusch@demos.org, (212) 389-1307
Peter Wagner, pwagner@prisonpolicy.org, (413) 527-0845
Aleks Kajstura, akajstura@prisonpolicy.org, (413) 527-0845
Anna Pycior, apycior@demos.org, (212) 389-1408

Advocates Hail Census Bureau’s Release of Data to Assist in Correcting Prison-Based Gerrymandering;
New Data Will Boost State and Local Efforts to Draw Fairer Districts

New York, NY—Today, the Census Bureau released a new data product that will assist state and local governments in avoiding prison-based gerrymandering, a practice which unjustly gives districts that contain prisons extra representation in the legislature. The Bureau’s accelerated release of 2010 group quarters table was hailed by Demos and the Prison Policy Initiative, two national non-partisan organizations working on state and local redistricting reform.

Under most state constitutions and election law statutes, a prison cell is not a residence, but existing Census Bureau practices count incarcerated people as residents of the prison location.

As a result of discussions last year between Census Director Robert Groves and Rep. Wm. Lacy Clay, Jr., Chairman of the House Subcommittee on Information Policy, Census and National Archives, the Census Bureau has now for the first time identified which census blocks contain group quarters, such as correctional facilities, early enough that state and local redistricting bodies can choose to use this data to draw fair districts.

In the past, states and counties that wished to correct this overrepresentation of districts with prisons had received little support from the Census Bureau, as the Bureau traditionally published the prison populations at the census block level long after redistricting is underway or completed.

“The Census Bureau has taken an important step toward recognizing the need for improved data on incarcerated populations so that states can end the practice of prison-based gerrymandering,” said Peter Wagner, Executive Director of the Prison Policy Initiative. “States and local governments that have been struggling to correct distorted redistricting figures are eagerly looking forward to this data.”

Advocates had earlier urged the Census to determine the home addresses of incarcerated people and count them there, but it was too late in the 2010 Census planning to change that. This interim solution of releasing accelerated data identifying prison populations will assist governments that wish to make their own adjustments for state and local redistricting. Legislation to make such adjustments was enacted last year in Maryland, New York and Delaware, and is currently under consideration in several states including in Illinois, Rhode Island and Oregon.

In past years, state legislative districts in many states have had prison populations large enough to run afoul of constitutional “one person, one vote” standards. Local county and municipal districts have seen even greater distortions, with many districts having more incarcerated people than voters. These states and localities can now more readily identify the prison populations before drawing district lines, and make appropriate adjustments to avoid distortions in representation.

“For too long, communities with large prisons have received greater representation in government on the backs of people who have no voting rights in the prison community and are not considered legal residents of the prison district for any other purpose. The Census Bureau’s new data will greatly assist states and localities in correcting this injustice and drawing fair and accurate districts that honor the principle of one person, one vote,” said Brenda Wright, Director of the Democracy Program at Demos.

While hailing the Census Bureau’s first step toward improving its practices on counting incarcerated persons, advocates are engaged in a longer-term campaign to encourage the Bureau to implement a more permanent solution under which the decennial census would count incarcerated persons at their home locations.

The new data has been published on the Census Bureau’s Redistricting Data Office website at http://www.census.gov/rdo. To make this data easier to use by redistricting professionals and democracy advocates, the Prison Policy Initiative will be producing shapefiles later today with the group quarters data and making a web-based database of annotations available to the public at http://www.prisonersofthecensus.org/data/. In addition, Demos and PPI have a publication, Preventing Prison-Based Gerrymandering in Redistricting: What to Watch For, which provides guidance on how advocates and map-drawers can minimize the impact of prison-based gerrymandering when redrawing state and local district lines.

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State Senators hurt own districts in filing law suit

Senators' law suit hurts their own constituents, as well as New York residents around the state.

by Aleks Kajstura, April 11, 2011

Oneida County, in upstate New York, would like to avoid prison-based gerrymandering when drawing their county Board of Legislators’ districts. Their Senator, however, was one of the nine that filed a law suit that is not only holding up their redistricting process, but threatens to force Oneida, as well as other counties across the state, to draw districts distorted by prison populations.

Robert Brauchle’s State debate over prisoners muddies county’s redistricting talks, published in the Observer-Dispatch, explains the problem:

In Oneida County Legislator David Wood’s district, about two-thirds of his constituents can go grocery shopping, drive a car and vote.

The remaining third are locked in prison cells.

Now, as the county prepares for the upcoming redistricting process to determine the boundaries for the Board of Legislators’ districts, officials are becoming increasingly unnerved about the partisan debate in Albany that will affect where those prisoners are counted.

A law signed by former-Gov. David Paterson in August counts prisoners in their pre-arrest locations during the redistricting process. Previously they had been counted in the location where they were incarcerated.

That change would impact the county Reapportionment Committee’s ongoing redistricting work to address population shifts within the county and to make the population even in each district.

But state Sen. Joseph Griffo, R-Rome, along with eight other Senate Republicans, have filed a lawsuit against the Task Force on Demographic Research and Reapportionment and the state Department of Correctional Services to overturn the 2010 redistricting law.

“It’s not like they come here, and everything is self contained,” he said. “There’s a draw on resources and a cost to them being here.”

Until the process in the state Legislature plays out, the roughly 4,500 state prisoners in Oneida County will remain in limbo over whether they should officially be recorded as citizens in their location of incarceration or their pre-arrest homes.

Wood, the county Board of Legislators majority leader, said he would like to see prisoners counted at their pre-arrest locations.

“If we have to count them out of the cells, then we’ll do it that way,” said Wood, R-Rome, who represents a district that includes Mohawk Correctional Facility and Oneida Correctional Facility. “But this is stalling us right now in some bureaucratic time warp that we can’t get out of.”

Ramon Velasquez, of VOCAL, also responds to the law suit in an informative article that gives a first-person account of experiences with prison-based gerrymandering in the state, as well as some background on the issue.

Prison-based gerrymandering is not just a problem in New York; The Star Press highlights a similar example of grappling with the issue in Henry County, Indiana.