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Importing Constituents: Prisoners and Political Clout in Oklahoma

By Peter Wagner and Elena Lavarreda
September 21, 2009

Introduction

The Census Bureau counts Oklahoma prisoners as if they are residents of the communities where they are incarcerated, even though they can’t vote and remain legal residents of the places they lived before they were incarcerated. Crediting thousands of mostly urban and minority men to the wrong communities has staggering implications for modern American democracy, which uses the Census to apportion political power on the basis of equal population. The process of drawing fair and equal legislative districts fails when the underlying data is flawed.

The Census Bureau has always counted prisoners as residents of the prison location, but it is only recently that the prison population is large enough to effect legislative districting. As recently as 1980, the Oklahoma state prison system had 4,595 prisoners, compared to 5 times as many in 2000.[1]

The Census Bureau is counting this large population in the wrong place. A legal residence is the place that people choose to be and do not intend to leave; and because prison is not voluntary, it cannot be a residence.

Today, our conception of democracy requires far more detailed and accurate data to reflect where the population — including people in prison — actually live. In almost every respect, except for how it counts people in prison, the Census Bureau’s methodology has evolved to keep pace with the changing needs for its data. But now that such a large percentage of the population is incarcerated — and the 2010 Census is on the horizon — where the Census Bureau counts people in prison is a question of critical importance.

Redistricting and “One Person, One Vote”

A. Diluting votes in the State Legislature

Seven of Oklahoma’s House districts meet federal minimal population requirements only because the state treats prisoners as residents of the district with the prison. To ensure that each resident has equal access to government, regardless of where she or he lives, federal law requires legislative districts each contain the same population. When districts are of substantially different sizes, the weight of each vote starts to differ: in under populated districts, each vote is worth more, and in overpopulated districts, a vote is worth less.

By Oklahoma law, prisoners can’t vote and remain residents of their home communities. But by relying on Census Bureau counts of prison populations to pad out legislative districts with prisons, Oklahoma is inflating the votes of residents who live near prisons at the expense of every other resident in the state.

The U.S. Supreme Court first declared that the “One Person, One Vote” principle applied to state legislative redistricting in the 1963 landmark case Reynolds v. Sims.[2] The Court struck down an apportionment scheme for the Alabama state legislature that was based on counties and not population. Under Alabama’s apportionment plan, sparsely populated Lowndes County had the same number of state senators as densely populated Jefferson County. This gave the residents of Lowndes County 41 times as much political power as the residents of Jefferson County. Reynolds v. Sims barred this practice and put it plainly: “The weight of a citizen’s vote cannot be made to depend on where he lives.” The Supreme Court ruled that the 14th Amendment’s equal protection clause required that districts be drawn to be substantially equal in population.

Subsequent U.S. Supreme Court cases defined the limits of “substantially equal.” In White v. Regester[3], the Court ruled that the state of Texas was not required to justify how it drew lines resulting in an average district deviation of less than 2% and a maximum deviation of 9.9%. Allowing these small differences in district population sizes helps to protect other legitimate state interests, such as keeping communities of interest in the same legislative district. Today, most states draw their districts so that the smallest district is no more than 5% smaller, and the largest no more than 5% larger, than the average district. This keeps the difference between the largest and smallest district within 10%.

In Oklahoma, a State House of Representatives district is supposed to contain 34,165 people, plus or minus 1,708 people. Each Oklahoma House district meets the federal standard of population equality, but only because prisoners were counted in the wrong place.

For example, the 55th House District in Washita, Kiowa, Caddo and Canadian Counties has an actual population that is 307 smaller than it should be, well within federal limits. However, the large federal and private prisons in the district make the actual population far too small. The actual population is 2,901 (8.49%) fewer than the average district. Ironically, the majority of the people incarcerated in the federal prisons and in the private Great Plains Correctional Facility are counted not just in the wrong district, but in the wrong state. (To be sure, a very small portion of the district’s incarcerated population is in local county jails and are likely residents of the district; but the overwhelming majority are from other states or districts.)

Similarly, district 22 in Murray, Garvin, Pontotoc, McClain, and Cleveland counties was drawn to contain slightly more population than it was required, but the massive prison populations mean that the number of actual residents in the district is 7.3% smaller than it should be. This gives every group of 93 residents in the districts as much political clout as 100 residents anywhere else in the state.

Table 1. Seven House districts meet federal minimum population requirements only because they include incarcerated people as local residents. In these seven districts, the presence of the prisons in the Census data enables every group of 92 to 95 residents to claim as much political power in the State House as each group of 100 residents everywhere else in the state.

District	Counties	Represent­ative (Aug. 2009)	Population (Census)	Prisoners	Deviation from ideal pop­ulation, by Census counts	Percent deviation from ideal pop­ulation, by Census counts	Deviation from ideal population without using prisoners as pop­ulation	Percent deviation from ideal without using prisoners as pop­ulation	Prisons
13	Muskogee (part), Wagoner (part)	Jerry McPeak (D)	34,459	1,829	-294	-0.9%	-2,123	-6.21%	Muskogee Community Correctional Center, Muskogee County/City Detention Center, Jess Dunn CC, Dr. Eddie Warrior CC, Muskogee Community Correctional Center
18	Pittsburgh (part), McIntosh (part)	Terry Harrison (D)	34,389	2,111	-224	-0.7%	-2,335	-6.83%	Jackie Brannon Correctional Center, Pittsburgh County Jail, Oklahoma State Penitentiary, Pittsburgh County Jail, McIntosh County Jail
22	Murray, Garvin (part), Pontotoc (part) McClain (part), Cleveland (part)	Wes Hilliard (D)	34,099	2,569	66	0.2%	-2,503	-7.33%	Lexington Assessment and Reception Center, Joseph Harp CC, Murray County Jail, McLaine County Jail
55	Washita, Kiowa (part), Caddo (part), Canadian (part)	Vacant pending special election	34,472	2,594	-307	-0.9%	-2,901	-8.49%	FCI El Reno, Camp El Reno, Great Plains Correctional Facility, Hobert Community Work Center, Canadian County Jail, Washington County Jail, Kiowa County Jail
63	Tillman, Comanche (part)	Don Armes (R)	34,448	2,081	-283	-0.8%	-2,364	-6.92%	Frederick Community Work Center, Lawton Correctional Facility, Lawton Community Correctional Center, Tillman County Jail
88	Oklahoma (part)	Al McAffrey (D)	34,153	2,427	12	0.0%	-2,415	-7.07%	Oklahoma City Jail, Oklahoma Halfway House, Carver CC
90	Oklahoma (part)	Charles Key (R)	34,205	1,753	-40	-0.1%	-1,793	-5.25%	FTC Oklahoma City

Oklahoma’s decision to rely on flawed Census counts of the prison population artificially enhances the districts with prisons and dilutes the voting power of everyone else. These seven legislative districts lack sufficient population to meet accepted one-person, one-vote standards without counting disenfranchised prisoners as part of their population base. At the same time, heavily minority urban districts would be entitled to additional representation if prisoners were counted as residents of their home communities for purposes of redistricting.

B. Diluting Votes on the Local Level

The Census Bureau’s prison miscount has an even more pronounced impact on fair districting in county boards of commissioners. Because county board districts tend to be relatively small, a single prison can have a significant impact. The most dramatic example is in Alfalfa County with three districts of about 2,000 people. However, when drawing the district lines, the county included the 981 people incarcerated at the James Crabtree Correctional Center in district 3. More than 46% of district 3 is people who are not residents of the county and — even if they could vote — would not be allowed to participate in local elections. Consequently, 54 voters in this district have the same voting power as 100 voters in the other districts.

16 Oklahoma counties have county board districts where substantial portions of the population is not local residents but incarcerated people from other parts of the state. (See Table 2.) The import of prison-based gerrymandering can also be seen graphically in Osage County, where District 1 goes miles out of its way to include the Conner Correctional Facility, splitting it from the rest of the City of Hominy in District 3. (See Figure 3.)

Fortunately, one Oklahoma county has shown that it is not powerless to fix the Census Bureau’s mistakes. Greer County, which has a resident and prison population very similar to Alfalfa County, simply ignored the prison population when drawing its county board districts. As a result, each resident of Greer County has the same access to county government regardless of whether she or he lives immediately adjacent to a large prison.

Table 2. Sixteen Oklahoma counties where prison populations are large portions of individual county districts.

County	Most distorted district	District size	Prison population	Vote enhancement	How do votes compare to votes in other districts in the county?
Alfalfa	3	2,116	981	46.36%	Every 54 residents in district 3 have as much power as 100 residents in other districts.
Atoka	1	4,407	1,409	31.97%	Every 68 residents in district 1 have as much power as 100 residents in other districts.
Beckham	1	6,720	1,534	22.83%	Every 77 residents in district 1 have as much power as 100 residents in other districts.
Blaine	3	4,046	1,329	32.85%	Every 67 residents in district 3 have as much power as 100 residents in other districts.
Caddo	1	10,192	762	7.48%	Every 93 residents in district 1 have as much power as 100 residents in other districts.
Canadian	3	28,972	1,671	5.77%	Every 94 residents in district 3 have as much power as 100 residents in other districts.
Comanche	1	39,428	2,136	5.42%	Every 95 residents in district 1 have as much power as 100 residents in other districts.
Craig	2	5,044	410	8.13%	Every 92 residents in district 2 have as much power as 100 residents in other districts.
Hughes	1	4,780	968	20.25%	Every 80 residents in district 1 have as much power as 100 residents in other districts.
Jefferson	3	2,273	191	8.40%	Every 92 residents in district 3 have as much power as 100 residents in other districts.
Muskogee	3	23,713	1,549	6.53%	Every 93 residents in district 3 have as much power as 100 residents in other districts.
Okfuskee	1	4,085	675	16.52%	Every 83 residents in district 1 have as much power as 100 residents in other districts.
Osage	1	14,494	1,310	9.04%	Every 91 residents in district 1 have as much power as 100 residents in other districts.
Pittsburg	2	14,929	2,082	13.95%	Every 86 residents in district 2 have as much power as 100 residents in other districts.
Woods	1	3,082	431	13.98%	Every 86 residents in district 1 have as much power as 100 residents in other districts.
Woodward	3	6,286	514	8.18%	Every 92 residents in district 3 have as much power as 100 residents in other districts.

Prison popluations also distort City Council districts. The City of McAlester avoids prison-based gerrymandering by excluding prison populations from their data when redistricting the City Council. The cities of Cushing, El Reno, Lawton, Sayre, Vinita, Watonga, Waurika all risk distorting their City Council districts with prison populations unless they follow McAlester's example and adjust the redistricting data.

Recommendations

The Census Bureau’s decision to credit thousands of disenfranchised non-residents to the Census blocks with prisons creates serious problems for Oklahoma. When state and county legislators use Census counts of prisoners to pad out the population of certain legislative districts where they do not reside, the basic democratic principle that everyone must be counted and represented in the right place is violated.

The Census Bureau needs to change its outdated method of counting people in prison, and state and local officials should encourage that change for future Censuses. With time running out before the 2010 Census and with Oklahoma’s tight redistricting schedule, the state should explore ways that it can make up for the Census’ data shortcomings and help protect the integrity of the line drawing process at the state and local level. There are four ways the state can do this: by advocating for change at the Census Bureau, by changing where incarcerated people are counted in the redistricting data, by drawing all districts without the prison populations, and by requiring counties to draw districts without prison populations.

A. Ask the Census Bureau to change where it counts people in prison.

The ideal place to fix the prisoner miscount is at the U.S. Census Bureau. Historically, the bureau has been responsive to the needs of its data users when deciding how to count the population, so Oklahoma state and local officials should lobby the Bureau directly. Oklahoma’s short redistricting timeline makes the states particularly dependent upon Census Bureau cooperation. Further, change at the Census Bureau would eliminate any possible legal conflict between federal redistricting law which requires equal districts of actual population without mandating the use of the federal Census with the Oklahoma State Constitution which declares a role for the “Federal Decennial Census”. Okl. Const. Art V. S9A and S10A (a).

While insufficient time remains for the Census Bureau to change where incarcerated people are counted in 2010, Oklahoma should start asking the Bureau to make the change in future Censuses. In the mean time, in order to protect its next round of redistricting, Oklahoma must explore other options at the state level.

B. Oklahoma can adjust the U.S. Census’ count of prisoners prior to redistricting to count incarcerated people at home.

Oklahoma can fix the Census data by collecting the home addresses of people in prison and then adjusting the U.S. Census counts prior to redistricting. Legislation with these goals has been introduced in New York[4] and Texas and is patterned on how Kansas adjusts the federal census counts of military personnel and students.[6]

This plan would require the state to determine which correctional populations it wishes to adjust the residence for and develop a plan to collect that information on Census day in April 2010. (See sidebar.) The state would have to process this data and prepare to subtract incarcerated people from the Census blocks that contain prisons and add them to their home blocks.

C. Oklahoma can draw state and/or county districts without the prison populations.

Alternatively, states can ignore the prison populations when drawing their state district lines. This approach would not credit incarcerated people back to their homes, but it would end the practice of crediting them to different communities of interest in the wrong part of the state. It has been endorsed as a viable interim solution by the National Research Council of the National Academies, the editorial board of the New York Times, and a state constitutional amendment with this approach is currently pending in Wisconsin.[8]

The advantage of this method is that it can be enacted relatively late, but Oklahoma's compressed state legislative redistricting timeline will require some advanced planning so that the prisons can be identified and removed in the redistricting data published by the Bureau.

The Census Bureau’s PL94-171 Redistricting Data File will contain just 5 tables. Four of race, ethnicity and age information, and one with information about vacant housing. Correctional facilities will not be labeled as correctional facilities in this file, so the state must be prepared to find the facilities on the census maps and to know how much of the population to remove. Unfortunately, prisons often share a census block with other populations, so the state would need to collect the population count of each facility on April 1 in order to adjust the block counts when the redistricting data is made available in March 2011.

D. Oklahoma should require counties to draw districts without regard to prison populations and provide them with the technical resources to do so.

The largest impact of prison based gerrymandering is at the county level, and that is where it should be the easiest to fix. Rather than draw a district that was half prisoners, Greer County had the right idea: drawing fair districts requires modifying the Census data to ignore the prison. Starting at the county level would address the largest aspect of the prison-based gerrymandering problem, and would be the most legally and technically straight forward.

Unlike the state house and senate districts, the state constitution does not provide a specific mention of the data source to be used for districting, thereby giving more flexibility to the counties. Further, because the counties have a slower redistricting schedule than the state, counties have additional, simpler options, for finding and removing the prisons from the redistricting data.

The state should, by the means discussed above or through distribution of the Summary File 1 prison counts released in the summer of 2011, encourage or require counties to ignore the prison populations when drawing their districts.

There is great precedent for this approach. Colorado requires counties with prisons to remove the prison population prior to redistricting[9], and Virginia law encourages it[10]. Many other counties decide on their own to exclude the prison population prior to redistricting. In Essex County, New York, the county Board of Supervisors enacted a law that mandated excluding the prisons when apportioning its government because “the inclusion of these federal and state correctional facility inmates unfairly dilutes the votes or voting weight of persons residing in other towns within Essex County.”[7] But given the difficulty in doing so, the state should assist the process of helping the counties draw fair districts.

About the authors

Peter Wagner is an attorney and Executive Director of the Prison Policy Initiative. In 2002, he authored the first district-by-district analysis of the impact of Census counts of prisoners on state legislative redistricting, Importing Constituents: Prisoners and Political Clout in New York (2002). He has presented his research at national and international conferences and meetings, including a Census Bureau Symposium, a meeting of the National Academies, and keynote addresses at Harvard and Brown Universities. His publications include, with Rose Heyer, Too Big to Ignore: How Counting People in Prisons Distorted Census 2000 (2004) and, with Eric Lotke, Prisoners of the Census: Electoral and Financial Consequences of Counting Prisoners Where They Go, Not Where They Come From [PDF] (2005).

Elena Lavarreda is a 2008 graduate of Smith College and a policy associate at the Prison Policy Initiative.

About the Prison Policy Initiative

The Massachusetts-based non-profit, non-partisan Prison Policy Initiative documents the impact of mass incarceration on the larger society. Focusing on a once-obscure Census Bureau glitch that counts people in prison where they are temporarily held instead of the communities they come from; the Prison Policy Initiative demonstrates how the prison system reaches beyond prisons to punish people and communities not under criminal justice system control. The organization’s work to change how people in prison are counted has won the support of the New York Times editorial board and the Census Bureau’s own advisors at the National Research Council.

Endnotes

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