Minnesota Redistricting Panel must address prison-based gerrymandering, experts say

Written testimony from the Prison Policy Initiative, Demos, and the Second Chance Coalition urges the Minnesota Judicial Special Redistricting Panel to implement solutions to prison-based gerrymandering.

by Leah Sakala, October 21, 2011

The members of the Minnesota Judicial Special Redistricting Panel have been traveling the state to gather public input about the state’s redistricting process. One of the critical questions they must consider in the current redistricting cycle is how to address the Census’s prison miscount, argued experts including the Prison Policy Initiative.

Ten years ago, the legislature used the Census Bureau’s prison counts to draw the districts, giving more influence to the districts that hosted the prisons and diluting the votes of every resident in every other district. The urban, African American and Native American communities that a disproportionate number of the people in prison call home pay an even higher price. This year, the Minnesota Judicial Special Redistricting Panel has a unique opportunity to right this wrong.

The Prison Policy Initiative, Dēmos, and the Minnesota Second Chance Coalition all recently submitted testimony to the Minnesota Judicial Special Redistricting Panel, urging them to lessen the harm of prison-based gerrymandering in Minnesota. In her testimony, Brenda Wright of Dēmos explains three different solutions that the Panel could choose:

1. Remove incarcerated populations from the redistricting data, ensuring that the power of the an individual’s vote in Minnesota is not determined by his or her residential proximity to a prison. This is the most straightforward and effective solution.
2. Use Minnesota’s allowable deviation from the ideal district size to compensate for the distortion caused by including prison populations in redistricting data. Choosing this solution would mean drawing districts that contain prisons on the heavy side of the allowable range, and drawing the districts that incarcerated people tend to come from on the lighter side.
3. Increase transparency by identifying incarcerated populations in all draft and final redistricting maps and tables. This would facilitate the process of determining the impact of incarcerated populations in redistricting data, and allow the Panel to take prison populations into account when determining minority electoral power. Peter Wagner, Executive Director of the Prison Policy Initiative, discussed this option in detail in his submitted testimony.

If the Minnesota Judicial Special Redistricting Panel chooses to implement any of these solutions, it would both fix a flaw that undermines the state’s democracy, and bring the redistricting process in line with the Minnesota Constitutional Clause that unambiguously states that the condition of being incarcerated does not change a person’s residence:

“[N]o person loses residence … while confined in any public prison.” (Article VII, § 2.)

As Sarah Walker of the Minnesota Second Chance Coalition pointed out in her testimony to the Panel, Minnesota should act now to implement a timely solution. But in the long run, she explains, Minnesota should follow the lead of states like Maryland, New York, Delaware, or California, and enact statewide legislation to ensure that this redistricting cycle is the last one in which Minnesota will have to address the issue of prison-based gerrymandering.

Rhode Island ACLU to Reapportionment Commission: say NO to prison-based gerrymandering

Hillary Davis of the RI ACLU testified before members of the RI Reapportionment Commission, urging them to avoid engaging in the most extreme prison-based gerrymandering in the country.

by Leah Sakala, October 18, 2011

Rhode Island is in danger of potentially creating a House District where a quarter of the people counted in the district wouldn’t be actually be constituents of the district’s representative.

How can this be? Because that quarter is locked up in the Cranston prison complex.

The Census Bureau counts incarcerated people as if they were residents of the facilities in which they are detained, but both Rhode Island law and common sense say otherwise. Incarcerated people remain legal residents of their home addresses, and, if allowed to vote, they vote absentee in their home districts. When incarcerated people are counted as “constituents” of the district that includes the prison, the political clout of that district is inflated at the expense of all other districts. In the House District scenario above, for example, every three of the actual residents who live in the district with the prison would have as much access to the House of Representatives as any four people living in any other district.

Because prison-based gerrymandering poses such a threat to the welfare of Rhode Island’s democracy, the Rhode Island ACLU is stepping in to show how the state can get redistricting right. Yesterday the ACLU presented testimony before the Rhode Island Reapportionment Commission, explaining that the Commission needs to take decisive action in order to avoid creating one of the most extreme prison-based gerrymandering situations in the country.

ACLU policy associate Hillary Davis warned the members of the Commission that Rhode Island is particularly vulnerable to the pernicious effects of prison-based gerrymandering:

The need for remedying this problem in Rhode Island is heightened by our state’s special status. We believe we may be the only state with just one prison complex. This fact combines negatively with the fact that Rhode Island legislative districts are smaller by population than in most states.

It is precisely this combination of a concentrated prison population with the relatively small size of Rhode Island districts that has the potential to put the state on the map as having the most dramatic instance of prison-based gerrymandering in any state legislative district. Furthermore, state law explicitly states that the condition of being incarcerated does not legally sever a person from his or her actual home address.

As Davis explained, there’s an easy solution that would immediately solve the problem for this redistricting cycle: just take the prison populations out of the general population data used for redistricting. Removing the prison populations for redistricting purposes would ensure that every vote cast in Rhode Island is weighted equally, and all residents have equal access to the legislature.

And in the long term? Rhode Island should follow the lead of states like Maryland, New York, Delaware, or California, and pass legislation that ends prison-based gerrymandering statewide once and for all.

Massachusetts plans to diminish distortion caused by prison-based gerrymandering

House Redistricting Committee Chairman Mark Moran points out that the Massachusetts can use allowable deviations from the deal district size to lessen the distorting effects of prison-based gerrymandering

by Leah Sakala, October 14, 2011

This redistricting cycle it looks like Massachusetts is taking action to lessen the distortion caused by prison-based gerrymandering.

An article published in yesterday’s Bay State Banner reports that members of a coalition of Massachusetts organizations are calling on the Massachusetts Redistricting Committee to address the problem of prison-based gerrymandering:

….members of the coalition are calling on the Redistricting Committee to not count prison populations in the drawing of districts, a practice they say artificially inflates the voting clout of suburban and rural districts that have prisons.

While a clause in the Massachusetts Constitution prevents the Committee from changing the way incarcerated people are counted for the current round of redistricting, House Redistricting Committee Chairman Mike Moran noted that the Committee can use allowable deviations from the deal district size to lessen the distorting effects of prison-based gerrymandering:

Moran noted that the U.S. Census counts prisoners in the census tracts where they’re incarcerated. But he added that, although the Legislature is required to draw districts that are of equal size, they have leeway to deviate from that standard by up to five percent.

“Where there is a prison, you would keep it on the negative side and where there is not, you would keep it on the positive side,” Moran said.

Here’s a video we released that explains why this fix is a step in the right direction for Massachusetts democracy:

One person, two votes in Pacific, Missouri?

The city of Pacific, Missouri is in danger of using a prison to dilute the votes of a two-thirds of its citizens.

by Peter Wagner, October 13, 2011

The City of Pacific, Missouri is in danger of diluting the votes of a two-thirds of its citizens.

Yesterday’s Washington Missourian reports that the city’s current redistricting plan counts the more than 1,000 people incarcerated in the Missouri Eastern Correctional Facility in Ward 1, making up nearly half of the ward’s entire population. This means that a resident of this ward would have about twice the political clout of a resident in any other ward, just because he or she lives near a prison.

Is that fair? Of course not. I just submitted a letter to the editor to the Missourian explaining why:

City of Pacific should refuse to use prison in redistricting

If you live in the Second or Third Ward, your vote is going to be worth half as much as if you lived next to the prison in the First. [“Redistricting Plan Selected for Ward Boundaries” October 12, 2011] That’s not fair. Districts are supposed to be based on equal numbers of residents. By common sense and the state constitution, prisoners are not residents of the prison.

The Missouri state constitution defines residence for people in prison: “no person shall be deemed to have gained or lost a residence by reason of his presence or absence while… confined in public prison.” (Article VIII, S 6.)

The Census counts people in the prison as residents of Pacific, but the federal law does not require the city to use those counts. In fact the Supreme Court has said it’s ok to remove them:

“Neither in Reynolds v. Sims nor in any other decision has this Court suggested that the States are required to include … persons denied the vote for conviction of crime in the apportionment base by which their legislators are distributed and against which compliance with the Equal Protection Clause is to be measured. The decision to include or exclude any such group involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere.” Burns v Richardson 384 U.S. 73, 92 (1966).

The City of Pacific should join the more than 100 counties and cities across the country that refuse to use the Census Bureau’s prison counts when drawing districts.

The City may not have known that this solution was legal or common when it prepared the proposed maps, but it should take action quickly to ensure that all residents are given the same power to determine the future of Pacific.

Peter Wagner
Executive Director
Prison Policy Initiative
Easthampton, Massachusetts

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.”

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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/.

New York Times: “Playing the Inmate Card Skews Redistricting” in Texas

This morning the New York Times printed an article on how prison-based gerrymandering distorts democracy in Texas.

by Leah Sakala, September 30, 2011

This morning, the New York Times printed an article on how prison-based gerrymandering distorts democracy in Texas.

Making some savvy observations about how prison-based gerrymandering is an issue for both state and local governments, the Times reports:

In Anderson County — and in Bee, Karnes or Walker Counties — a significant part of the population is in prison. State prisoners in each of those places account for at least 19 percent of the total county population. Each Texas county has four county commissioners, elected from districts of equal size.

Inmates can’t vote, so counties can ignore the prison populations when they draw those districts. For redistricting purposes at the county level, the prisoners simply don’t exist.

The state, on the other hand, counts them, adding to the populations of districts that have large prisons. Because rural legislators like Representatives Jose Aliseda, Byron Cook, Tim Kleinschmidt and John Otto, all Republicans, have prisons in their districts, they each have big populations of ineligible voters — criminals who aren’t included in county maps, who can’t vote, and who don’t really have a stake in local affairs.

And maybe they shouldn’t: The prisoners don’t come from those counties. They tend to come from the state’s populous counties, like Harris and Dallas. And in Harris County’s case, not counting them as residents means one state representative fewer in the local delegation.

Prison-based gerrymandering in Tennessee Counties

This memo discusses several ways that Tennessee counties could harmonize the federal “one person one vote” principle with the unique requirements of the State Constitution.

by Peter Wagner and Aleks Kajstura, September 26, 2011

The most dramatic instances of prison-based gerrymandering tend to be in rural counties that have large prisons, because a single state or federal prison can be the majority of a small county board district. The common solution used by more than 100 counties and municipalities is to remove the prison populations prior to redistricting. In most cases, this solution is permitted by law: Federal law gives local governments the right to determine the population base for their districts, and most state laws are silent on the question.

The operative word is “most.” Many of the most dramatic examples of prison-based gerrymandering are clustered in states where local governments have a little less flexibility when redistricting: notably Virginia, Wisconsin and the subject of this memo, Tennessee.

At the National Conference of State Legislatures in August, I met Tom Fleming, Director of the Office of Local Government within the Tennessee Comptroller’s office. He and I were attending the same session where the Census Bureau was soliciting feedback on the effectiveness of the Redistricting Data Program. After the session, he and I spoke about how the issue of prison-based gerrymandering effects Tennessee counties, and I offered to prepare a briefing memo on some possible solutions to the problem for this round of redistricting. That memo is below.

To: Tom Fleming
From: Peter Wagner and Aleks Kajstura, Prison Policy Initiative
Date: August 23, 2011
Re: Prison-based Gerrymandering in Tennessee Counties

This memo discusses the impact of the Census Bureau’s decision to count incarcerated people as residents of the prison location on Boards of County Commissioners districts in Tennessee, and discusses several ways that counties could harmonize the federal “one person one vote” principle with the unique requirements of the Tennessee State Constitution.

Introduction to the Problem

Every decade, counties in Tennessee, and across the nation, redistrict their Boards of County Commissioners to ensure equal representation in county government as required by U.S. Supreme Court precedent. When each district contains the same population, each member of the community is afforded equal representation. This undertaking, however, is vulnerable to any flaws in the data on which redistricting relies. There is a longstanding flaw in the Census that counts incarcerated people as residents of the prison location, even though almost all are barred from voting [1] and are not legal residents of the surrounding community.[2] When district population counts rely on incarcerated populations, people who live close to the prison are given more of a say in government than everybody else. The practice of using prison populations to dilute the votes of other residents is referred to as “prison-based gerrymandering.”

One of the most dramatic examples in the nation that was created after the 2000 Census was in Lake County Tennessee where 88% of the population in County Commissioner District 1 was not local residents, but incarcerated people counted in the Northwest Correctional Complex. This gave every group of 3 residents in District 1 as much say in county affairs as 25 residents in other districts. Nine other counties in Tennessee saw dramatic instances of prison-based gerrymandering, as seen in this table, from the Prison Policy Initiative report Phantom Constituents in Tennessee’s Boards of County Commissioners:[3]

The Tennessee State Constitution may prohibit the most obvious solution

The U.S. Constitution requires counties to redistrict each decade, but in most states counties are free to choose which populations to include in the population base used to draw the districts. A few states require local governments to exclude prison populations when redistricting,[4] and more than 100 counties and municipalities around the country independently choose to remove the prison populations when drawing local legislative districts.[5] To assist counties in this process, the Census Bureau recently decided to produce the Advance Group Quarters Table to make the process easier.

Michigan spares most counties and municipalities from prison-based gerrymandering

Michigan law will prevent most prison populations from unintentionally skewing representation in local government, but problems still remain.

by Andrew Stecker and Aleks Kajstura, September 26, 2011

While the states of New York and Maryland are ending prison-based gerrymandering state-wide just now for the first time, over 100 local governments throughout the country have already been avoiding prison-based gerrymandering on their own. Counties and municipalities redistrict their governments every 10 years just like states do, but because of their smaller populations, the Census Bureau’s policy of counting incarcerated people at the location has a greater impact in skewing local democracy.

Anamosa, a small city in Iowa, for example, had a City Council ward where 96% of the “residents” were actually in the State Prison located in one corner of town. In Anamosa, the 58 people who lived next to the prison have as much power on the city council as about 1,370 living elsewhere in town.

In order to avoid such gross misrepresentation, over 100 counties and municipalities adjust their redistricting data to remove large prison populations. This approach allows the counties to base their districts on their actual resident population.

A few states have attempted to aid their local governments in dealing with this problem though state legislation. Colorado requires counties to subtract incarcerated populations before conducting county redistricting. Mississippi state law has been interpreted by the Attorney General to require counties to exclude prison populations as well. Virginia extends this policy only to counties with the most extreme population distortions.

Michigan, however, has come the closest to a full solution for local governments. Michigan statutory requirements for redistricting prevent state prison populations from skewing either county or municipal democracy. The statutes provide that the district population cannot include anyone in a state institution who is not a resident of the city or county for election purposes.

These Michigan laws will prevent most prison populations from being unintentionally used by local governments in redistricting, but problems can still remain. Long after these laws were enacted, for example, a new federal facility was built in Washtenaw County. The statutes do not address federal prisons at all, leaving such counties with the burden of identifying and addressing the problem without the benefit of clear guidelines.

A comprehensive nationwide solution would fill these holes that are currently found in the patchwork of state and county solutions. States such as Michigan have come a long way to preventing prison-based gerrymandering from affecting local redistricting, but ideally, the U.S. Census Bureau would just count incarcerated people as residents of their legal home addresses, and not as residents of the correctional facilities.

Mansfield, Ohio succumbs to prison-based gerrymandering

Unfounded fears about funding lead to prison-based gerrymandering in Mansfield, Ohio.

by Aleks Kajstura, September 22, 2011

Earlier this summer we reported that Mansfield, Ohio was considering avoiding prison-based gerrymandering by excluding the population of two state prisons from the city’s redistricting data.

On Tuesday, the City approved maps that included about 5000 people incarcerated at the Richland and Mansfield Correctional Institutions as if they were residents of the City’s 5th Ward. At-Large Councilman Doug Versaw explained why this was a bad idea:

“They [the prisoners] are not citizens of Mansfield. They cannot vote. They have nothing to do with city council at all, in that we don’t represent them,” he said. “All of the wards in the City of Mansfield now have 8,000 people (with potential voting rights) — except for Ward 5, which has 3,000. To me, that gives those people in Ward 5 ‘superrepresentation,’ which I don’t think is fair.”

This “superrepresenation” amounts to giving actual residents of Ward 5 twice as much political power as any other Mansfield resident.

Why, then, did prison-based gerrymandering prevail in Mansfield? The City Council was afraid that drawing fair districts would somehow hurt their federal or state funding.

The impact of population totals on funding is an unfortunate but common and recurring theme in local redistricting discussions. This often sets up a false choice between electoral fairness and funding. This misunderstanding might come from the fact that the Census Bureau encourages participation by highlighting that many funding formulas are in part based on census data. However, no federal or state funding formula relies on redistricting data. Furthermore, most funding formulas are complex in order to specifically target the actual population in need – for example, school funding is often based on the actual number of students or school-aged children. Prison populations simply do not factor into such well-tailored calculations.

Under state law, prison populations are not even included in the official census population counts used to determine whether a municipality classified as a “village” should be upgraded to a “city” classification. When the Ohio Secretary of State certified Grafton’s population to classify it as a village, he excluded the prison population from his calculations. This practice is consistent with the definition of residence under Ohio law.

It is unfortunate that misunderstandings about funding formulas can have such a devastating impact on the ability of Mansfield residents to have equal say in city government. Having a prison in your town should not deny you access to the principle of “one person, one vote.”