Pennsylvania voting rules explain prisoner residence

by Peter Wagner, April 18, 2005

In previous articles, I’ve explained how the two states that currently allow prisoners to vote, Maine and Vermont, require prisoners to vote via absentee ballot back home. Prisoners are not allowed to vote in local elections because they are considered residents of their home communities, not the prison towns.

But this rule applies in other states as well. In contrast to people in state prison for felonies, most states allow jail inmates (generally those awaiting trial or serving a short misdemeanor sentences) to vote. A voting rights pamphlet [PDF] issued by the Pennsylvania Secretary of State and distributed to incarcerated people shows how that state interprets its own residence rules for incarcerated people.

The rules state that a prison cannot be used as a voting address, and that the person should vote using either their last registered address or register at their last pre-incarceration address. But the rules also contain a common sense provision that keep the rule fair and accurate: prisoners may also establish a new residence outside of the correctional facility, “for example, if the inmate’s spouse establishes a new residence in which the inmates intends to reside upon his/her release from confinement.”

Pennsylvania, like most states, defines residence and structures its democracy around the idea that people are residents of the part of the state they choose to be in. Incarceration does not qualify as a residence because it is involuntary. That makes sense, but this carefully constructed concept breaks down when the state relies on federal census data to draw its legislative districts because prisoners and prisons are unevenly distributed in the state. Forty percent of the state’s prisoners are from urban Philadelphia, and all are incarcerated outside of the city in often very remote locations.

In order to comply with their own rules on residence, states like Pennsylvania need the Census Bureau to change how they count incarcerated people. While it may have made sense to count prisoners as residents of the facility during the first census in 1790, both high incarceration and modern uses of the census for redistricting require a new approach.

Thanks to Jon E. Yount from bringing this pamphlet and its coverage in the February 2005 issue of Graterfriends, published by the Pennsylvania Prison Society to my attention.

Zoe Gottlieb takes prisoner-census analysis to southern states

by Peter Wagner, April 11, 2005

Zoe Gottlieb, a law student at the New York University School of Law, has made available on Prisoners of the Census the first review in southern states of the impact of how the U.S. Census counts prisoners. The paper, Prisoner enumeration and the “Usual Residence” rule in southern states, [PDF] looks at the county of origin and county of incarceration for prisoners in Georgia and North Carolina.

In the states I have previously studied, the urban areas often have large Black and Latino populations while the rural areas house the majority of the prisons but are largely white. In New York, I found that although New York State’s prisoners are 82% Black or Latino, 98% of New York’s prisoners are incarcerated in Senate districts that were disproportionately White for the state as a whole.

Ms. Gottlieb’s study is the first attempt to quantify at the county level in the South whether prisons are likely to be built in white rural areas. Given the very different demographics of the South and the fact that that region has the highest incarceration rate in the country, Gottlieb’s review is well timed to the growing national interest in the accuracy and utility of Census data.

Pace Law Review: Prisoners of the Census: Electoral and Financial Consequences

by Peter Wagner, April 5, 2005

The U.S. Census Bureau counts people in prison where their bodies are confined — in prison — not the communities they come from and where they are genuine members. This would be an item of statistical trivia, but the new numbers give it new meaning. More people now live in prison and jail than in our three least populous states combined. Organized differently, they would have six votes in the United States Senate. It is not trivia anymore.

A new article in Pace Law Review traces the unanticipated effects of this counting method. Prisoners of the Census: Electoral and Financial Consequences of Counting Prisoners Where They Go, Not Where They Come From [PDF] by Eric Lotke and Peter Wagner is the first academic article to quantify the impact of prison population counts on both the political process and on state and federal funding streams.

Skewing Democracy: Where the Census Counts Prisoners

by Peter Wagner, March 28, 2005

New York’s conservative State Senator Dale Volker is glad prisoners can’t vote, because if they did, as he told Newhouse News Service, “They would never vote for me.” Given Volker’s role as the leading defender of the draconian Rockefeller Drug Laws, prisoner opposition to Volker might not be surprising. But that Volker, who represents a mostly white rural part of the state, would care who the state’s mostly Black, Latino and urban prisoners might vote for is, on the surface, surprising. The explanation is that Volker owes his seat to a once-obscure Census Bureau glitch that credits the prison location with the population of prisoners involuntarily incarcerated there. Without credit for the 8,951 prisoners in his district, Volker’s sparsely populated rural district would need to be redrawn.

Our modern conception of democracy — based on the One Person, One Vote rule that requires legislative districts to be redrawn each decade to contain roughly equal numbers of people — is now skewed by the Census Bureau’s outdated method of counting incarcerated people. The Bureau developed the “usual residence rule” for determining where people are counted for the first Census in 1790. While the rule for other special populations like students and military have evolved over time, the method of counting prisoners remains mired in the past. In 1790, this rule might have made sense, because the Census Bureau had a far simpler purpose: to count the number of people in each state, in order to determine their relative populations for purposes of Congressional reapportionment. It did not matter — for purposes of comparing New York’s population to New Jersey’s — whether an incarcerated person was counted at home in New York City or in the remote Attica Prison, as long as they were counted in the right state. Although our society and our uses for Census data have changed radically since 1790, the Census’ method of counting prisoners has unfortunately remained the same.

Frequent transfers mean that prison is not a residence

by Peter Wagner, March 21, 2005

The U.S. Census currently counts prisoners as residents of the correctional facility, despite the requirement in many state constitutions that incarceration does not change a residence. Because prisons tend to be built far from the communities where most prisoners originate, when states rely on federal census data to redraw their legislative district lines, they unwittingly violate their own constitutions and distort the distribution of political power in their states.

Although the use of incarceration and sentence lengths have greatly increased in recent decades, the statistics of the New York State Department of Correctional Services underscore the wisdom of the state constitutional requirement that “no person shall be deemed to have gained or lost a residence, by reason of his presence or absence … while confined in any public prison.” N.Y. Const. art. II, § 4.

Incarceration meets neither the voluntary nor the intent to remain requirements of residence. Prisoners not choose to move to a prison town, they are sent there against the will by the state. Despite ever-increasing sentence lengths, the public perception that most prisoners will never be released is unfounded. In New York State in 2000, the median time served in custody is 24 months. That same median prisoner will be eligible for release in less than 15 months. Incarceration is merely a temporary absence from home, not the creation of a new residence that severs ties to the old.

New York State publishes another statistic that emphasizes how temporary and involuntary a prisoner’s presence in the prison location is: In New York State, the median time served in the current facility is less than 7 months. The average prisoner might be in more than 5 different prisons during his or her sentence, each at the discretion of the Department of Corrections.

Counting prisoners as residents of the prison location might make sense for the Census Bureau and the national count, but it is an inadequate way of determining where a state’s population resides for purposes of distributing political power within a state. Either the Census Bureau needs to update its methods, or states need to begin developing new ways to count their population.

92% of New York’s prison cells are in disproportionately White Assembly districts

by Peter Wagner, March 14, 2005

The Census Bureau counts incarcerated people as if they were residents not of their homes but of the prison’s location. When states like New York ignore their own constitutional requirement that incarceration does not change a residence and use Census data to draw legislative districts, the result is to transfer political power from high incarceration neighborhoods to the areas that contain the prisons.

I’ve previously written about the regional bias implicit in the arrangement. Sixty-six percent of the New York State’s prisoners come from New York City, but 91% of the state’s prison cells are located in the upstate region.

Even more critical is how this impacts the political power of Blacks and Latinos in the state compared to Whites. New York State is 62% White, but 82% of the state’s prison population is Black or Latino.

Virtually all — 92% — of the prison cells are located in state Senate districts that are disproportionately White for the state.

If New York State wants to draw districts that accurately and fairly represent the population of the state, it needs to encourage the Census Bureau to change how it counts prisoners.

Note: The methodology for this article draws its inspiration from Paul Street’s article about Illinois counties: The Color and Geography of Prison [PDF]. This article relies on the new Figure 15 in my 2002 report, Importing Constituents: Prisoners and Political Clout in New York. Consistent with that report and how the New York Legislature and Department of Correctional Services count race and ethnicity, I’ve used the term “White” to mean “Non-Hispanic White” as counted in the U.S. Census. To produce the 92% figure, I calculated from Figure 15 that New York was 62% Non-Hispanic White. I then filtered Figure 15 to show just those legislative districts that were 62% or more Non-Hispanic White, and added up the number of prisoners in each of those districts. The result was 92% of the state prison population in districts that were disproportionately White. You can also see this same analysis for Senate districts, where 98% of prisoners are incarcerated in disproportionately White Senate districts.

Georgia’s proposed congressional districts may violate One Person One Vote principle

by Peter Wagner, March 7, 2005

State legislators in Georgia are currently redrawing the districts of Georgia’s Congressional delegation, but by relying on Census data that counts prisoners as residents of the prison location, they are unwittingly diluting the votes of Georgia residents who do not live near prisons.

New York proposes to fix the Census distortion

by Peter Wagner, February 28, 2005

On February 25, New York Deputy Minority Leader Senator Eric T. Schneiderman introduced S2754 to prevent the way the U.S. Census counts prisoners from distorting democracy in New York.

The U.S. Census counts prisoners as if they were residents of the prison location rather than of their pre-incarceration homes. Like most states, New York currently relies on Census Bureau data when drawing its legislative districts, but its constitution defines residence quite differently than the Census. The New York constitution reads that “no person shall be deemed to have gained or lost a residence, by reason of his presence or absence … while confined in any public prison.”

Many states have similar constitutional clauses, but until recently, states were unaware that by relying on Census Bureau data they were violating their own constitutions. The Census Bureau counts prisoners this way as a result of an outdated practice that predates modern uses of Census data for intra-state redistricting. There is currently a national movement to convince the Census Bureau to change how it counts prisoners, but states like New York and Illinois are showing that they are not hostage to Census Bureau counting decisions. As long as a state began planning early, it would be possible to adjust Census counts of prisoners prior to redistricting.

The New York bill requires the State Board of Elections to create a specially modified version of the Census Bureau’s redistricting data for use in congressional, state senate and state assembly redistricting. The various corrections agencies in the state would be required to submit home address information to the Board of Elections, who in turn would change the Census data so it would reflect New York’s prisoners being counted at home rather than at the prison location. The Legislative Task Force on Demographic Research and Reapportionment would then be required to use this corrected data in drawing new districts.

Census miscounts prisoners, dilutes urban voting power

by Peter Wagner, February 21, 2005

Back in 2000, the Census Bureau counted prisoners as if they actually lived in the town that contains the prison. According to recently published analysis, this administrative quirk reduced the population of the communities where most prisoners come from and swelled the population of the rural communities that host prisons. Each decade, census population data is used to draw legislative districts, so prisoners makes prison towns seem more populous — and therefore receive more political clout — than their population should have warranted.

Making matters worse, all states but Maine and Vermont bar state prisoners from voting, so prisoners are unable to influence the often pro-prison-expansion legislators whose clout they enhance. At the same time, the urban legislators who so frequently favor proven alternatives to incarceration such as drug treatment see their population and political clout diminished.

Illinois bill reflects growing frustration with Census counts of prisoners

by Peter Wagner, February 14, 2005

On February 2, Illinois Deputy Majority Leader Representative Arthur L. Turner introduced the Prisoner Census Adjustment Act to prevent the current U.S. Census practice of counting prisoners as residents of the prison location from distorting democracy in Illinois. While other advocates have been working to convince the U.S. Census to start counting prisoners as residence of their pre-incarceration homes, Chicago-based attorney Dan Johnson-Weinberger has been working with Representative Turner to craft a state-based solution to ensure that future Illinois legislative districts match the actual population of Illinois communities.