By Kenneth J. Cooper
Political redistricting based on last year’s U.S. census has triggered a campaign by activists to persuade state legislatures to change the standard practice of counting prisoners where they are incarcerated rather than where they last lived.
Public interest groups scored successes last year in Maryland, Delaware and New York when those states became the first to ban what activists call “prison-based gerrymandering.” The groups say it distorts political representation, giving more power to areas with correctional facilities and less to other places, particularly those with large minority populations.
Bills are pending in Rhode Island and Oregon where legislatures are scheduled to adjourn in June. Connecticut lawmakers adjourned June 8 without acting on a bill. Because remapping has begun in California, proposed legislation there would not take effect until after the 2020 census. Lobbying to pass a new law in New Jersey faltered before redistricting began. In Illinois, time remains available on legislative and redistricting calendars.
Dale Ho, assistant counsel at the NAACP Legal and Educational Fund, says he is “very, very optimistic” about the California legislation. Ho concedes that getting lawmakers’ attention has been difficult because “in these times, state legislators are really focused on budget issues.”
The push began more than a decade ago after the issue was identified in a film about rural prisons and after a Pennsylvania prison inmate filed a lawsuit, says Peter Wagner, executive director of the Prison Policy Initiative. A New York Times editorial coined the term “prison-based gerrymandering” in 2006.
In its decennial population count, the U.S. Census Bureau has always listed prisoners where they are housed. Those counts have been routinely used to draw lines for congressional, legislative and local districts after each census.
Ho says that the practice “may not have been a big deal” but that “the prison population has skyrocketed” in recent decades.
The incarcerated population of about 2 million, Wagner says, is larger than that in each of the 15 smallest states and would have five votes in the Electoral College if it were a state and inmates were allowed to vote.
“It artificially inflates the prison population in places where prisons are, really to the detriment of everyone else,” Ho says. “The communities that suffer most are urban communities.”
Ho notes that almost 30 percent of the nation’s population is African American and Hispanic but that 77 percent of the incarcerated are housed mostly in areas without a sizable minority presence. “In a way, that dilutes minority voting power,” he says.
Generally, political districts must be drawn to include fairly similar numbers of residents in order to comply with the U.S. Supreme Court’s mandate of one person, one vote. Thus, voters in a district where nonvoting prisoners are counted have more political power than residents of other districts.
Wagner cites one legislative district in Maryland where 18 percent of residents counted by the census were prisoners. In smaller districts for city councils, school boards or county commissions, the distortions are magnified. For that reason, more than 100 local jurisdictions remove prisoners from census data, he says. But that limited adjustment does not count them as living in their last residences.
The prevailing practice in redistricting tends to transfer political representation for imprisoned minorities from big cities to outlying rural areas—for instance, from Baltimore to western Maryland, from Chicago to downstate, from New York City to other parts of the state.
“There are states where there’s a very clear racial bias in prison-based gerrymandering,” Wagner says. “The racial bias is clearest in New York, Wisconsin and Illinois.”
Common Cause, which has joined the lobbying effort along with the American Civil Liberties Union, points to a racial impact on Native Americans in Oregon. They constitute 1.3 percent of state residents but 3.6 percent of prisoners there.
In New York state, Republicans condemn the 2010 legislation as requiring a more familiar kind of manipulation—“partisan gerrymandering.” Nine Republican legislators, predominantly from upstate districts with prisons, have sued to overturn the law before it is implemented.
The state lawsuit filed in April charges that the law requires “the fictitious movement of a phantom population of almost 58,000 nonvoting prisoners into residences already occupied by others, and from upstate Republican districts to downstate New York City Democratic districts.” Statewide, 49 percent of prisoners are from the city.
The prisoners, it says, “draw upon the services of the communities in which their prisons are located,” while the law leaves “the burden of services costs and expenses to the locality where they remain actually housed.”
Ho says the new law is unrelated to local services and does not affect funding formulas. Of the prisoners, he adds: “They are legal residents in their own communities. That’s, in fact, the case in every state in the country.”
With most legislative sessions at or near an end, Wagner says nearly every other state could do what New York, Delaware and Maryland have done by taking administrative action to adjust census counts, even without new legislation.
The Census Bureau has made that step more feasible by releasing information earlier than usual about where prisoners are housed in each state. Still, corrections officials would have to expend time, effort and money to collect addresses where inmates last lived.
Only once, in 1900, has the census collected such addresses. Listing prisoners where they are incarcerated has been the practice in every decennial count and has been official policy since 1990.
“I think the ideal place for a fix to happen is at the Census Bureau,” Wagner says. “It would be easier on states and local governments if they did it. Our strategy is to put changing where prisoners are put in the census on the Census Bureau’s research agenda.”