Federal Judges uphold Maryland law ending prison-based gerrymandering

One judge calls our amici brief "particularly impressive and persuasive".

December 27, 2011

On Friday, Dec 23, a federal three-judge panel rejected a lawsuit seeking to overturn Maryland’s landmark “No Representation Without Population Act,” which counts incarcerated people as residents of their legal home addresses for redistricting purposes.

The Maryland law addressed a long-standing problem in the federal Census that counts incarcerated people as residents of the prison location, even though they cannot vote and retain their pre-incarcerated residences. For decades, using unadjusted Census data diluted the vote of every Maryland resident who did not live near the prison complex in western Maryland, and had a particularly negative effect on African-American communities that experience disproportionate rates of incarceration.

The Judges note that the No Representation Without Population Act they upheld was an important Maryland civil rights victory: “As the amicus brief … makes clear, the Act was the product of years of work by groups dedicated to advancing the interests of minorities.” (p. 20)

Other versions of Maryland’s law have since passed in New York, Delaware and California. Maryland was the only state to apply its law to congressional redistricting, and the first state to complete the process after passing a law. The Judges’ ruling that the law was properly passed and fairly implemented will encourage other states to pass similar laws and will hopefully encourage the Census Bureau to make their own changes in where incarcerated people are counted.

The Court issued its ruling late on the Friday before closing for the Christmas weekend, and just three days after a hearing on the evidence and oral arguments on Tuesday. The Court had promised a decision by the end of January, but quickly concluded that the lawsuit was without merit. The case, Fletcher v. Lamone, was a Republican-backed lawsuit that challenged the congressional plan proposed by the Democratic governor of Maryland. The suit raised claims of partisan gerrymandering and racial discrimination against African-Americans. Three of the claims attacked the No Representation Without Population Act as part of that otherwise unrelated lawsuit.

The Prison Policy Initiative, along with our colleagues at the Howard University School of Law Civil Rights Clinic, the ACLU of Maryland, the Maryland State Conference of NAACP Branches, Somerset County Branch of the NAACP, the NAACP Legal Defense and Education Fund, and Dēmos submitted a friend of the court brief to make it clear to the court that the No Representation Without Population Act was protective of minority voting rights. (Our brief did not address the other claims in the lawsuit.) Judge Williams, in his concurring opinion, called our brief “particularly impressive and persuasive.” (p. 49)

The Court upheld the state’s congressional districting plan on all counts. While most of the 55-page opinion concerned other claims, considerable treatment was given to the No Representation Without Population Act.

The Court explained the law and its rationale:

• Quoting the state’s summary, “the Act is intended to ‘correct for the distortional effects of the Census Bureau’s practice of counting prisoners as residents of their place of incarceration.” The court then goes on to explain:

  “These distortional effects stem from the fact that while the majority of the state’s prisoners come from African-American areas, the state’s prisons are located primarily in the majority white First and Sixth Districts. As a result, residents of districts with prisons are systematically ‘overrepresented’ compared to other districts. In other words, residents of districts with prisons are able to elect the same number of representatives despite in reality having comparatively fewer voting-eligible members of their community.” (p. 9)

• The Court noted the critical importance of ending prison-based gerrymandering in local redistricting where the impact of a single prison can be the majority of a district. The Court discussed the infamous Somerset County example where a county commission district intended to be majority African-American was unable to elect an African-American for decades because the district contained a large prison and the African-American voting population of the district was too small to elect a candidate of African-American voters’ choice. (p. 9)

The Court explained that states are not required to blindly use the Census for redistricting purposes:

• Federal law requires Congressional districts to be exactly equal in population, but does not prohibit states from making improvements to the federal census data in establishing that population base. Federal case law allows adjustments to the data used for congressional districts. Although Census data is presumed to be a good starting point, the data can be adjusted to correct for flaws. These adjustments, however, may not be done in “a haphazard, inconsistent, or conjectural manner.” (pp. 12-13)

• The Court found that The No Representation Without Population Act and its implementation by the Maryland Planning Department meets the standard, writing:

  “The question remains whether Maryland’s adjustments to census data were made in the systematic manner demanded by Karcher. It seems clear to us that they were. As required by the regulations implementing the Act, … [the Maryland Department of Planning] undertook and documented a multistep process by which it attempted to identify the last known address of all individuals in Maryland’s prisons…. This process is a far cry from the ‘haphazard, inconsistent, or conjectural’ alterations the Supreme Court rejected in Karcher.” (pp. 16-17)

Because the No Representation Without Population Act was found to satisfy even the stricter standards applicable to congressional districts, the opinion bodes well for the constitutionality of similar laws that apply to state legislative and local redistricting, where governmental discretion to make adjustments in Census data is even clearer.

The Court addressed several other issues that come up frequently in discussions about ending prison-based gerrymandering:

• Improving how incarcerated people are counted does not necessitate improving how other groups are counted. Plaintiffs criticized the state for reallocating incarcerated people to their homes, but not doing the same for members of the military or students in dorms. The Court called the assumption that these populations are all similarly situated to be “questionable at best.” The court explains:

  “College students and members of the military are eligible to vote, while incarcerated persons are not. In addition, college students and military personnel have the liberty to interact with members of the surrounding community and to engage fully in civic life. In this sense, both groups have a much more substantial connection to, and effect on, the communities where they reside than do prisoners.” (p.18)

• States should improve redistricting data where possible, even if it cannot be made perfect. For example, plaintiffs criticized the state’s reallocation because not all incarcerated people return to their exact prior address. The Court ruled:

  “Because some correction is better than no correction, the State’s adjusted data will likewise be more accurate than the information contained in the initial census reports, which does not take prisoners’ community ties into account at all.” (pp.18-19)

• The Court found that “although the Census Bureau was not itself willing to undertake the steps required to count prisoners at their home addresses, it has supported efforts by States to do so,” quoting the Census Bureau Director’s explanation that the new Advance Group Quarters data would

  “enable states ‘to leave the prisoners counted where the prisons are, delete them from redistricting formulas, or assign them to some other locale.'” (p. 16)

The Court also addressed the main impetus for our brief, namely the plaintiff’s bizarre implication that a law passed with the intent of improving African-American voting rights somehow diluted African-American votes:

“Our review of the record reveals no evidence that intentional racial classifications were the moving force behind the passage of the Act. In fact, the evidence before us points to precisely the opposite conclusion.” (p.19)

Civil Rights Groups File Amicus Brief Countering Misinformation About Maryland’s “No Representation Without Population” Redistricting Law

The coalition amicus brief shows that Maryland's “No Representation Without Population” law is protective of minority voting rights.

December 5, 2011

FOR IMMEDIATE RELEASE December 5, 2011:

BALTIMORE, MD – Strongly contending that the Republican-sponsored challenge to Maryland’s landmark 2010 civil rights law, the “No Representation Without Population Act,” runs directly contrary to its plaintiffs’ goal of increased representation for Maryland’s African-American community, a coalition of civil rights groups today announces that an amicus brief has been filed to counter misinformation and defend the landmark civil rights law. The brief was filed with a special three-judge federal court convened to hear the Fletcher v. Lamone case, on behalf of the ACLU of Maryland,Maryland State Conference of NAACP Branches, Somerset County Branch of the NAACP, NAACP Legal Defense And Educational Fund, Inc., Howard University School of Law Civil Rights Clinic, Prison Policy Initiative, and Dēmos.

In related news, a separate lawsuit (Little v. LATFOR) brought to challenge a New York law inspired by Maryland’s No Representation Without Population Act was dismissed on Friday by the NY State Supreme Court, upholding the validity of this important reform.

In the coalition amicus brief, the groups make clear that Maryland’s first-in-the-nation law requiring the state to count incarcerated persons at their home addresses is protective of minority voting rights. Although incarcerated persons are not allowed to vote, prison populations previously were used to pad the populations of districts that contained prisons. That practice diluted the vote of every Maryland resident who did not live near the prison complex in western Maryland, and had a particularly negative effect on African-American communities that experience disproportionate rates of incarceration.

Moreover, the No Representation Without Population Act simply has nothing to do with the core issues in the Fletcher case. The ability to create a third majority African American congressional district is not diminished in any way by allocating incarcerated persons to their home communities. In fact, the No Representation Without Population Act actually enhances the representation of most of the plaintiffs in the case, precisely because it properly credits the population of African-American communities.

Brenda Wright, Director of the Democracy Program at Demos, said: “The No Representation Without Population Act was designed to end distortions caused by counting incarcerated persons as members of communities to which they have no connection. Counting incarcerated persons at their home residence allows Maryland to draw accurate districts in line with the principle of one person one vote.”

Deborah Jeon, Legal Director for the ACLU of Maryland, said: “Before the No Representation Without Population Act, the voting power of African-American communities was literally being siphoned off through the criminal justice system and redirected to primarily rural areas. It is unconscionable to bring back the old system of using disenfranchised – and disproportionately African-American – prison populations to pad white electoral districts.”

Peter Wagner, Executive Director of the Prison Policy Initiative, and co-author of Importing Constituents: Incarcerated People and Political Clout in Maryland, said: “The State of Maryland should be saluted — not sued — for counting incarcerated people in the correct location.”

Albany Judge Upholds Law Ending Prison-Based Gerrymandering

New York Supreme Court Justice Eugene Devine today upheld New York's law ending prison-based gerrymandering in the Little v. LATFOR lawsuit.

December 2, 2011

Victory for Civil Rights, Fair Representation Removes Any Doubt That Redistricting Body Can Proceed Under New Law

For Immediate Release: Dec. 2, 2011

Albany, NY – New York Supreme Court Justice Eugene Devine today upheld New York’s law ending prison-based gerrymandering in the Little v. LATFOR lawsuit. His decision squarely rejects the plaintiffs’ claim that the New York law violated various provisions of the New York State Constitution.

Attorneys for the fifteen voters from around New York State who joined the suit as intervenor-defendants issued the following joint statement:

By eliminating the political distortion caused by prison-based gerrymandering, the new law upheld by today’s decision will ensure fairer representation for all New Yorkers, starting with this year’s redistricting.

Judge Devine’s decision affirms what we have known from the beginning: the law ending prison-based gerrymandering advances fairness in redistricting and is in complete agreement with New York’s state constitution. Now that Justice Devine has made his decision, we look forward to seeing LATFOR implement the new law in the coming months.

The organizations representing the fifteen voters in court were the Brennan Center for Justice, the Center for Law & Social Justice, Dēmos, LatinoJustice PRLDEF, the NAACP Legal Defense and Education Fund, the New York Civil Liberties Union, and the Prison Policy Initiative. In today’s ruling rejecting Plaintiffs’ legal challenge, the Court repeatedly cited the organizations’ arguments explaining the policies and legal precedent supporting New York’s law.

On Aug. 4, Judge Devine granted the fifteen voters permission to intervene and defend the law. The defendants in the lawsuit were government bodies charged with carrying out the new law: the New York State Legislative Task Force on Demographic Research and Reapportionment (LATFOR), and the Department of Corrections and Community Supervision (DOCCS). The New York State Attorney General’s office is representing DOCCS.

The new law, known as “Part XX,” requires that incarcerated persons be allocated to their home communities for state and local redistricting and reapportionment but does not affect funding distributions. This tracks with the New York State Constitution’s explicit provision that incarceration does not change one’s residence.

New York State Senator Elizabeth Little and a group of co-plaintiffs sought to restore New York’s former practice, which artificially inflated the voting strength of select communities at the expense of all others by allocating incarcerated persons to the districts where prisons are located, rather than to their home addresses.

A recent Quinnipiac University poll reported that public opinion is against prison-based gerrymandering, with a majority of New York State voters agreeing that “prison inmates should be counted as residents of their home districts, not of where they’re imprisoned.” The poll found that majorities of voters from both parties, and majorities of both upstate and downstate voters, favored “counting inmates in their homes, not their prisons.”

About Prison-Based Gerrymandering

There are dramatic examples of prison-based gerrymandering in upstate counties and cities. For example, half of a council ward in the city of Rome, New York is incarcerated. As a result, the actual residents of that ward wield twice the influence of other city residents. Recognizing the distortions caused by prison-based gerrymandering at the local level, 13 New York counties with large prisons – including four in plaintiff Senator Little’s district – have historically exercised their discretion to remove the prison populations prior to redistricting.

Civil Rights Groups Take Stand for Maryland’s “Prisoners of the Census” Redistricting Law

PPI and other civil rights groups announced that they will file an amicus brief to defend the “No Representation Without Population Act,” which ended prison-based gerrymandering in Maryland and is currently being challenged before a federal court in Fletcher v. Lamone.

November 18, 2011

FOR IMMEDIATE RELEASE November 18, 2011:

BALTIMORE, MD — Today, a coalition of civil rights groups, including the Prison Policy Initiative, Dēmos, ACLU of Maryland, Maryland State Conference of NAACP Branches, Somerset County Branch of the NAACP, and others announced that they are preparing an amicus brief to defend the “No Representation Without Population Act” currently being challenged before a federal court in Fletcher v. Lamone, a lawsuit challenging Maryland’s Congressional redistricting plan. The brief will make clear that Maryland’s first-in-the-nation law requiring the state to count prisoners at their home addresses is protective of minority voting rights, and will decry the plaintiffs’ attempt to bring back the old system of using disenfranchised – and disproportionately African-American – prison populations to pad white electoral districts.

The plaintiffs in Fletcher raise seven civil rights and partisan gerrymandering claims. The civil rights groups preparing the amicus brief will urge the court to dismiss the three claims challenging application of the “No Representation Without Population Act.”

Passed and signed into law in 2010, the “No Representation Without Population Act” is civil rights reform that requires that state prisoners be counted in their home districts, not where they are incarcerated. It corrects discriminatory vote enhancement and ensures fair representation in legislative redistricting following the latest U.S. Census.

The “No Representation Without Population Act” corrects an unfair enhancement of voting power that a district with a prison receives by diluting the voting power of any district without a prison. The law’s impact has already been felt across the state. Before the law, one Maryland state legislative district’s population was 18 percent prisoners. As a result, four voting residents in this district had as much political influence as five residents elsewhere, because prisoners could not vote. The impact at the local level is even more pronounced. In Somerset County, on Maryland’s Eastern Shore, 64 percent of the population in one Commission district was made up of prisoners. This meant a vote in that district was worth 2.8 times more than a vote in neighboring districts.

The distortion of the election system through inclusion of non-voting prisoners has been a longstanding civil rights problem in Maryland, and its effects can be clearly seen in Somerset County. There, over the course of decades, inclusion of prison in a majority-minority district meant that despite the County’s 42 percent African American population, no black official was ever elected until after the No Representation Without Population Act was passed.

Brenda Wright, Director of the Democracy Program at Demos, said: “The No Representation Without Population Act was designed to end distortions caused by counting incarcerated persons as members of communities to which they have no connection. Counting incarcerated persons at their home residence allows Maryland to draw accurate districts in line with the principle of one person one vote.”

Deborah Jeon, Legal Director for the ACLU of Maryland, said: “By enacting this vital civil rights law, Maryland took a giant step toward correcting unfair vote enhancement, and making fair representation possible in legislative redistricting. Democracy now has more meaning in Maryland, especially in a place like Somerset County, where African American voters may finally be heard in proportion to their numbers in the community.”

The No Representation Without Population Act is an important tool to solving these problems, and restoring the idea of “one person, one vote” to Maryland.

Peter Wagner, Executive Director of the Prison Policy Initiative, and co-author of Importing Constituents: Incarcerated People and Political Clout in Maryland, said: “The State of Maryland should be saluted — not sued — for counting incarcerated people in the correct location.”

With Governor Brown’s signature, California becomes 4th state to outlaw prison-based gerrymandering

The non-profit non-partisan Prison Policy Initiative hails California Governor Brown for signing AB 420 in to law on Friday.

October 9, 2011

FOR IMMEDIATE RELEASE October 9, 2011
Contact: Peter Wagner (413) 923-8478

The non-profit non-partisan Prison Policy Initiative hails California Governor Brown for signing AB 420 in to law on Friday. The legislation, introduced by Assemblymember Mike Davis, would end the practice of treating incarcerated individuals, for redistricting purposes, as residents of the districts where they are temporarily confined.

The new law will take effect for the 2020 round of redistricting, requiring the Department of Corrections to report the home addresses of incarcerated people to the Citizens Redistricting Commission so that the Commission may count incarcerated people at home for redistricting purposes. The new law is similar to that currently in effect in Maryland and New York, and to a law passed in Delaware to take effect in 2020.

“California is the 4th state to correct a serious flaw in the decennial Census”, said Peter Wagner, Executive Director of the Prison Policy Initiative. The organization has been leading a decade-long effort to to correct the problem of “prison-based gerrymandering” where the legislative districts that contain prisons receive extra political influence and all other districts receive less. Although people in prison can’t vote and are considered by California state law to be residents of their home communities, the Census Bureau counts people in prison as if they were residents of the prison location.

“The Prison Policy Initiative, civil rights groups, and the Census Bureau’s own advisers have urged the Bureau to change where they count people in prison,” said Wagner. The Census Bureau has not yet made this change, so “California joins 3 other states — and more than 100 county and municipal governments — who all deserve credit for developing their own solutions to the Census Bureau’s prison miscount.”

The new law applies only to redistricting and will not affect funding received by communities. The new state law will put California’s method of counting incarcerated people for state legislative redistricting purposes in line with that of the majority of the California counties that have large prisons. Ten of these counties have historically refused to engage in prison-based gerrymandering when drawing their own county districts.

The new law will solve serious electoral inequities in California created by prison-based gerrymandering. The Prison Policy Initiative’s analysis of the districts drawn after the 2000 Census found a state assembly district were 8.6% of the required population was incarcerated people from other parts of the state. Using the prisons to pad this district’s population gave every group of 91 voters in this district the same influence as 100 voters in other districts. Said another way, every voter in every district without a prison had their vote diluted about 9% by prison-based gerrymandering.

Miscounting the prison population caused a similar vote dilutive effect on the districts proposed by the California Redistricting Commission after the 2010 Census. (See the testimony of the Prison Policy Initiative and our colleagues at Dēmos on July 15, 2011.)

“The new law offers California voters a fairer data set on which future districts will be drawn,” said Wagner. “Incarcerated people are legal residents of their homes, not remote prison cells.”

-30-

ADVISORY: Tomorrow (10/4) Civil Rights Groups to Defend Law Ending Prison-Based Gerrymandering in NY Supreme Court Hearing

Attorneys for the fifteen voters from around New York State who have joined the legal defense of New York’s law ending prison-based gerrymandering will present oral arguments at a hearing in New York Supreme Court tomorrow, Tuesday, Oct. 4

October 3, 2011

MEDIA ADVISORY: For October 4, 2011

Albany, NY –Attorneys for the fifteen voters from around New York State who have joined the legal defense of New York’s law ending prison-based gerrymandering will present oral arguments at a hearing in New York Supreme Court tomorrow, Tuesday, Oct. 4. The case is Little v. LATFOR. The organizations representing the fifteen voters in court are the Brennan Center for Justice, the Center for Law and Social Justice, Dēmos, LatinoJustice PRLDEF, the NAACP Legal Defense and Education Fund, the New York Civil Liberties Union, and the Prison Policy Initiative..

On Aug. 4, Judge Devine granted the fifteen voters from across New York State permission to intervene in the lawsuit to defend the law. The defendants in the lawsuit are government bodies charged with carrying out the new law: the New York State Legislative Task Force on Demographic Research and Reapportionment (LATFOR), and the Department of Corrections and Community Supervision (DOCCS). The New York State Attorney General’s office is representing DOCCS.

The new law, known as “Part XX,” requires that incarcerated persons be allocated to their home communities for state and local redistricting and reapportionment, but does not affect funding distributions. This tracks with the New York State Constitution’s explicit provision that incarceration does not change one’s residence.

New York State Senator Elizabeth Little and a group of co-plaintiffs are seeking to restore New York’s former practice, which artificially inflated the voting strength of select communities at the expense of all others by allocating incarcerated persons to the districts where prisons are located, rather than to their home addresses.

Related Issues

Separate from the lawsuit, on Aug. 4, the New York State Legislative Task Force on Demographic Research and Reapportionment announced that it would comply with the law. This was a dramatic change for LATFOR, whose co-chair, Senator Nozzolio, represents a district that includes several large prisons. LATFOR had previously been implying that it was not going to implement the law.

This pledge to follow the law came after a flurry of public criticism prompted by the seven civil rights organizations representing the intervenors. On July 27, the seven civil rights organizations representing the intervenors wrote to LATFOR, explaining that LATFOR must comply with the law. LATFOR had also received intense criticism from editorial boards around the state, including the Albany Times Union , the Rochester Democrat and Chronicle and the New York Times.

A recent Quinnipiac University poll reported that public opinion is decidedly against prison-based gerrymandering, with a majority of New York State voters agreeing that “prison inmates should be counted as residents of their home districts, not of where they’re imprisoned.” The poll found that majorities of voters from both parties, and majorities of both upstate and downstate voters, favored “counting inmates in their homes, not their prisons.”

About Prison-Based Gerrymandering

There are dramatic examples of prison-based gerrymandering in upstate counties and cities. For example, half of a council ward in the city of Rome, New York is incarcerated, giving the residents of that ward twice the influence of other city residents. Recognizing the distorting effect of prison-based gerrymandering at the local level, thirteen New York counties with large prisons – including four in plaintiff Senator Little’s district – have historically exercised their discretion to remove the prison populations prior to redistricting.

The new law brings consistency to redistricting in New York, prohibiting the state and all local governments from giving extra political influence to districts that contain prisons. Sen. Little’s lawsuit seeks to have the new legislation struck down, the effect of which would require legislative districts – including her own, which contains 12,000 incarcerated persons – to include prisons when redistricting, to the detriment of all other districts without prisons.

Returning to this practice would unfairly inflate districts containing prisons at others’ expense, and violate the and violate the New York State Constitution. In addition, many areas containing large minority communities have been disproportionately affected by this practice, effectively diluting the votes of minority communities. The enactment of Part XX was considered a major civil rights achievement for New York State.

Keep track of the case and find the legal documents at the Prison Policy Initiative’s web page for Little v. LATFOR, http://www.prisonersofthecensus.org/little/.

Detailed demographics of correctional populations now available for nation

Database prepared by PPI for redistricting professionals provides detailed demographics for the correctional population, including race, age and gender.

September 13, 2011

September 13, 2011 — A new database prepared by the Prison Policy Initiative for redistricting professionals provides detailed demographics for the correctional population, including race, age and gender. The database expands on the Census Bureau’s Advance Group Quarters Summary File released in April, which identified the population in each Census block that is incarcerated or in some other kind of group quarters.

Redistricting professionals consider it preferable to use the Census Bureau’s counts of correctional facilities when making adjustments to the redistricting data instead of relying on the correctional system or their own knowledge of where the facilities are located. Because the Census often mixes prison and non-prison populations in the same block, and occasionally does not enumerate prisons at their actual locations, the optimal way to identify correctional populations in the Census data is with actual Census data. Our database makes this easy.

Since the Group Quarters Summary File release in April, the Prison Policy Initiative has been working to make the data easier to use. Shortly after it’s release, we translated it into several more accessible formats, including an ESRI shapefile, a Google map and a table searchable by county or state. Some redistricting professionals have been frustrated that the data doesn’t include the names or types of facilities, or detailed demographic counts. Our new dataset fills these needs.

Since April, we’ve used 2010 vintage correctional system data to label the facilities in more than a third of the census blocks that contain correctional populations. (And more are being labeled each week.) This is particularly useful to redistricting professionals because they may wish to treat different types of correctional facilities differently for redistricting purposes, for example, reallocating state prison populations by not local jail populations.

Now, with the publication of Summary File 1, we’ve been able to pull in more detailed age, gender, race and ethnicity data for these populations for most of the blocks. This database is important because the Census Bureau often mixes prison and non-prison populations within the same block, so knowing the demographics of the block does not necessarily tell you the demographics of the prison population. We drew on different Census Bureau data tables depending on the specific circumstances in each block. For example, if the prison is the entirety of a block, the data was easy to access, and we used a table that reports race/ethnicity for the institutionalized group quarters population where the correctional facilities were the only institutionalized group quarter in the block. For other circumstances, we developed other processes to extract the data, and each data element in our database has a full footnote with the source.

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.

Civil Rights Groups Answer Summary Judgment Motion in Prison-Based Gerrymandering Lawsuit

Attorneys for 15 NY voters filed papers today asking Judge Devine to grant motion for summary judgment and uphold law ending prison-based gerrymandering.

August 19, 2011

FOR IMMEDIATE RELEASE August 19, 2011

Albany, NY – Attorneys for the fifteen voters from around New York State who have joined the legal defense of New York’s law ending prison-based gerrymandering today filed papers asking New York Supreme Court Judge Eugene Devine to grant their motion for summary judgment and uphold the law. Their filing lays out why the judge should uphold the law and why a similar request from the Senators with large prisons in their districts should be denied. The case is Little v. LATFOR. The organizations representing these voters in court are the Brennan Center for Justice, the Center for Law and Social Justice, Dēmos, LatinoJustice PRLDEF, the NAACP Legal Defense and Education Fund, the New York Civil Liberties Union, and the Prison Policy Initiative..

On Aug. 4, Judge Devine granted the fifteen voters from across New York State permission to intervene in the lawsuit and join in the defense of the law. The original named defendants in the lawsuit are government bodies charged with carrying out the new law: the New York State Legislative Task Force on Demographic Research and Reapportionment (LATFOR), and the Department of Corrections and Community Supervision (DOCCS). The New York State Attorney General’s office is representing DOCCS.

The new law, known as “Part XX,” requires that incarcerated persons be allocated to their home communities for redistricting and reapportionment. This tracks with the New York State Constitution’s explicit provision that incarceration does not change one’s residence. Part XX applies to state and local legislative redistricting, and would not affect federal funding distributions.

New York State Senator Elizabeth Little and a group of co-plaintiffs are seeking to restore the old policy, which inflated the voting weight of a few communities at the expense of all others by allocating incarcerated persons to the districts where prisons are located, rather than to their home addresses.

Related Issues

Separate from the lawsuit, on August 4, the New York State Legislative Task Force on Demographic Research and Reapportionment announced that it would it would comply with the law. This is a dramatic change for LATFOR, whose co-chair, Senator Nozzolio, represents a district that includes several large prisons. LATFOR had previously been implying that it was not going to implement the law.

This pledge to follow the law came after a flurry of public criticism prompted by the seven civil rights organizations representing the intervenors. On July 27, the seven civil rights organizations representing the intervenors wrote to LATFOR, explaining that LATFOR must comply with the law. LATFOR had also received intense criticism from editorial boards around the state, including the Albany Times Union , the Rochester Democrat and Chronicle and the New York Times.

Public opinion is clearly against prison-based gerrymandering. A Quinnipiac University poll released last week reported that a majority of New York State voters say “that prison inmates should be counted as residents of their home districts, not of where they’re imprisoned.” The poll found that majorities of voters from both parties, and majorities of both upstate and downstate voters, favored “counting inmates in their homes, not their prisons.”

Judge Allows Civil Rights Organizations Representing Voters to Defend Law Ending Prison-Based Gerrymandering

NY judge allows civil rights organizations representing 15 voters join the Attorney General in defending NY law ending prison-based gerrymandering.

August 11, 2011

FOR IMMEDIATE RELEASE August 11, 2011

Albany, NY – A New York Supreme Court judge has cleared the way for civil rights organizations representing fifteen voters from across New York State to join the Attorney General in defending New York’s law ending “prison-based gerrymandering,” a practice that had distorted representation across New York State.

Judge Eugene Devine on Aug. 4 granted fifteen urban and rural voters from across New York State permission to intervene in Little v. LATFOR, a lawsuit challenging the law. The organizations representing these voters in court are the Brennan Center for Justice, the Center for Law & Social Justice, Dēmos, LatinoJustice PRLDEF, the NAACP Legal Defense and Education Fund, the New York Civil Liberties Union, and the Prison Policy Initiative. These groups are also representing three organizations that Judge Devine declined to grant intervenor status.

The new law, known as “Part XX,” requires that incarcerated persons be allocated to their home communities for redistricting and reapportionment. This tracks with the New York State Constitution’s explicit provision that incarceration does not change one’s residence. The legislation applies to state and local legislative redistricting, and would not affect federal funding distributions.

New York State Senator Elizabeth Little and a group of co-plaintiffs are seeking to restore the old policy, which inflated the voting weight of a few communities at the expense of many others by allocating incarcerated persons to the districts where prisons were located, rather than to their home addresses. This group benefitted from the prior policy.

The intervenor-defendants allowed in by Judge Devine’s decision will represent the interests of voters from across the state. The original named defendants in the lawsuit are government bodies charged with carrying out the new law: the New York State Legislative Task Force on Demographic Research and Reapportionment, known as LATFOR, and the Department of Corrections and Community Supervision. By permitting the intervenor-defendants to join the suit, Judge Devine is allowing the interests of voters who will be disenfranchised by prison-based gerrymandering statewide to be represented in court as the case proceeds.