Prisoner count skews Illinois population

by Peter Wagner, January 12, 2004

Paul Street illustrates how Census counts of prisoners at the prisons rather than at home skew the population of Illinois in important ways:

… The Chicago metropolitan area is home to 83 percent of the state’s African-Americans and point of origin for 70 percent of the state’s prisoners. Nearly two thirds (64 percent) of the state’s 45,629 prisoners in 2001 were African-American, a percentage more than four timers greater than blacks’ share of Illinois’ population. Forty-four percent of the state’s prisoners are African Americans from Chicago’s Cook County. Eighteen of the twenty adult correctional facilities constructed over the last two decades in Illinois are located in counties that are disproportionately white for the state. Just four of the state’s twenty post-1980 prison towns have above-average black populations for the state but in three of those this is only because they get to report prisoners as part of their population.

The Political Consequences of Racist Felon Disenfranchisement by Paul Street in The BlackCommentator.

Federal court strikes down Georgia legislative districting plan

by Peter Wagner, January 11, 2004

On February 10, 2004, a three judge panel struck down Georgia’s legislative redistricting plan. The case is Larios v. Cox. Traditionally, the rule has been that deviations in the size of state legislative districts that are less than 10% do not require a justification. (Greater deviations require justification that a legitimate state interest, such as preserving community boundaries, was served.)

Here, the Court ruled that a deliberate and consistent attempt to dilute the votes of suburban Georgian districts was impermissible under the Equal Protection principle. The 10% rule could not be used to protect districts deliberated designed to skew the weights of different regions in violation of Reynolds v. Sims and the one person one vote principle.

If upheld, this decision may have several powerful effects. First, it would draw more attention to the New York Senate’s legislative districts, which were drawn to deliberately overpopulate urban districts (especially Queens County) and to underpopulate rural districts. Similarly, as I wrote in Importing Constituents: Prisoners and Political Clout in New York, the regional bias implicit in relying on Census Bureau miscounts of prisoners may also come in to question:

The fact that the Queens districts are all equally oversized, right on the maximum border of illegality, suggests that the deviations were not driven by a concern to protect political boundaries, but rather to weigh different communities differently. The spokesperson for Senator Dean Skelos, the head of the senate’s redistricting task force, has defended the population deviations by telling the New York Times: “It’s legal, what more do you want?””[25] Whether such a concerted effort to push the limits of White v. Regester has ever been tested in Court is unclear, but combined with the counting of urban prisoners as rural residents, the problem of unequal district sizes in the senate is even larger than it appears on first glance.

See also Rick Hasen’s analysis on ElectionLawBlog and read the court’s opinion in Larios v. Cox.

Concern for prisoner-count based skew of democracy dates back to at least 1963

by Peter Wagner, January 5, 2004

The use for legislative redistricting of Census counts of prisoners at the prison rather than at home is of critical importance because the number of incarcerated people is now so high. I’ve previously written that prior to the 1990 Census, prisoners were not explicitly excluded from Census counts because incarceration was much less frequent than it is today. But the concern that it is fundamentally unfair to allow an artificial population to skew an otherwise equal distribution of political power is not a new one.

In 1963 the National Municipal League’s Model State Constitution included a provision for excluding prisoners and similar disenfranchised populations:

Section 4.04 Legislative Districts … In determining the population of each district, inmates of such public or private institutions as prisons or other places of correction, hospitals for the insane and other institutions housing such persons who are disqualified from voting by law shall not be counted….

The National Municipal League was correct to identify this problem back when the nation’s prisons held less than 218,000 prisoners. In the 1960s, it appeared that the total prisoner count was declining, and yet this issue was important enough for the organization to include in its model state constitution. Today, with more than a million additional prisoners taken from their homes and counted elsewhere, the need to prevent a census-based shift in democratic decision making is even greater.

Thanks to Professor James Gardner for sharing this information about the National Municipal League.

UPenn Law Review: Defying one-person, one-vote: Prisoners and the “Usual residence” principle

by Peter Wagner, January 2, 2004

Rosanna M. Taormina has published a great article, Defying one-person, one-vote: Prisoners and the “Usual residence” principle, [PDF] in the University of Pennsylvania Law Review.

The piece concludes:

In this Comment, I have examined the propriety of counting imprisoned persons at their prison address for redistricting purposes. I have suggested that this practice runs afoul of both constitutional and statutory requirements. The Census Bureau’s “usual residence” principle, as applied to disenfranchised prisoners and former prisoners, cannot be squared with the Supreme Court’s one-person, one-vote jurisprudence. The Court has refused to protect prisoners stripped of the most fundamental right accorded citizens of a democracy–the right to vote. It is time for either Congress or the Court to protect law-abiding citizens from state legislatures that unfairly take advantage of the existence of a disenfranchised population when creating “equal” congressional voting districts. “We the People” demand nothing less.

Rosanna M. Taormina, Defying one-person, one-vote: Prisoners and the “Usual residence” principle [PDF] 152 U Pa L. Rev. 431, 459.

Increasingly rural Illinois prisons dilute Chicago’s political power

by Peter Wagner, December 29, 2003

New prisons in Illinois are being built further and further from urban Chicago, home to 59% of the state’s prisoners. Prior to 1980, the average prison was 160 miles from the city. Prisons built in the 1980s were an average of almost 220 miles and prisons built in the last decade averaged 260 miles from Chicago.

Because the Census counted 45,000 Illinois prisoners not at home but in their rural prison cells, political power is flowing out of Chicago into increasingly more distant prison towns.

Sources:

IL DOC Statistics

Paul Street, and Dennis Kass, The Color and Geography of Prison Growth in Illinois [PDF],. Chicago Urban League, page 2.

Prof. Karlan: Underpopulated rural districts use prisoners as “inert ballast” to gain population

by Peter Wagner, December 27, 2003

Pamela S. Karlan of Stanford Law School has a great new article about felon disenfranchisement that discusses the census issue:

The year 2000 involved another event that highlighted the racially salient political consequences of the war on crime and its attendant disenfranchisement of large numbers of minority citizens. Under the “usual residence rule,” the Census Bureau counts incarcerated individuals as residents of the jurisdiction in which they are incarcerated. In many states, this results in largely white, rural communities having their population totals increased at the expense of the heavily urban, overwhelmingly minority communities from which most inmates come. This reallocation of population has at least two important effects. First, because a substantial amount of federal and state aid to localities is based on population, heavily minority communities lose revenue: Chicago, for example, stands to lose $88 million over the next decade because roughly 26,000 Chicagoans, 78 percent of them black, were serving time in downstate prisons at the time of the 2000 census. Second, because electoral districts are also based on population, people in prison serve as essentially inert ballast in the redistricting process. They enable the underpopulation of rural, overwhelmingly white districts relative to urban, heavily minority ones, thereby potentially changing the overall composition of legislative bodies. For example, in New York State, seven conservative upstate Republicans represent state senatorial districts that comply with one-person, onevote only because incarcerated prisoners are included within the population base. But these officials are neither descriptively nor substantively “representative” of their inmate “constituents.” As a result, many commentators have compared the inclusion of incarcerated inmates in the population base of the jurisdictions where they are incarcerated to the notorious “three fifhs” clause in the original Constitution, which enhanced the political clout of slave-holding states by including slaves in the population base for calculating congressional seats and electoral votes.

Pamela S. Karlan, Convictions and doubts: Retribution, representation, and the debate over felon disenfranchisement (Internal citations omitted) Stanford Law School

“Home of record” would be a more accurate “home address” than the prison town

by Peter Wagner, December 22, 2003

Unlike the other populations in other Census controversies (college students and military personnel) prisoners are not considered a part of the local community. After release, the incarcerating community no doubt wishes that ex-prisoners would leave on the first bus out of town.

The Census should allow prisoners to provide their own addresses, or it could use the “home of record” on file with the Department of Corrections. Using “home of record” to address special Census populations is not new. When at the last minute the 1990 Census decided to count military personnel stationed abroad as residents of individual states, they used the Department of Defenses’ home of record information despite the fact that this information tended to be outdated and biased towards the income tax laws of New Hampshire.

The Supreme Court upheld the Census’s use of “home of record” for military personnel abroad in the 1990 Census in Franklin v. Massachusetts 505 U.S. 788 (1992).

If prisoners could vote, they would vote at home, not in the prison town

by Peter Wagner, December 15, 2003

The Census counts prisoners as if they were residents of the prison town, but if prisoners could vote, they would vote at home. This isn’t just a matter of choice, it’s one of law.

Two states (Vermont and Maine) let prisoners vote and, until recently, two additional states (Utah and Massachusetts) did as well. Most prisoners didn’t vote, but when they did, each state required prisoners to vote not at the prison, but at home. An examination of how the four states required prisoners to vote at home is illustrative of how the question of prisoner residence should be treated for purposes of redistricting and representation.

Prior to 1990 Census, prisoners were not explicitly excluded from Census counts

by Peter Wagner, December 8, 2003

The 2000 Census form says to exclude family members incarcerated in correctional facilities.

While the Census’ usual residence rule has evolved over time, some “group quarters” populations such as nursing home residents, prisoners and those inside mental hospitals have, at least since 1850, always been counted at the facility. Whether the local count also excluded these populations — especially that of prisoners — is open to question.

Counting urban prisoners as rural residents counts out democracy in New York Senate

by Peter Wagner, December 1, 2003

The inmates at Attica prison in western New York state are represented in Albany by state Sen. Dale Volker, a conservative Republican who says it’s a good thing his captive constituents can’t vote, because if they could, “They would never vote for me.” …

Senator Volker made his career pushing prison expansion and the criminalization of drug use. He calls himself the “Keeper of the Keys” for his control of where new prisons are built. Because the U.S. Census counts prisoners where they are incarcerated, Volker gets to include the prisoners when redrawing his district lines each decade to ensure that he has the same population as other districts. Equal-sized districts are necessary to ensure that all citizens have an equally weighted vote.