Four states and hundreds of local governments are standing up to reject one of the most repugnant aspects of the prison industrial complex: Legislators with prisons located in their districts who claim the people incarcerated there – who cannot vote – as their “constituents,” then use their newfound political clout to further expand the prison system.

The problem originates with the U.S. Census Bureau, which has, for hundreds of years, counted incarcerated people as residents of the location where they are imprisoned rather than their pre-incarceration address. With the first census in 1790, this didn’t matter at all.
Few people were in prison, they weren’t locked up that far from home and, most importantly, the data wasn’t used for anything other than determining a state’s number of Congressional seats. So long as the Census Bureau could figure out that New York had 10 seats in Congress and New Jersey had 5, it didn’t matter whether someone was a resident of rural Attica or urban Brooklyn, just that they were counted in New York State.

Today, however, we incarcerate far more people and use census data far differently. Since a series of voting rights cases in the 1960s, the Supreme Court has required state and local governments to redraw their legislative districts every 10 years to ensure equal representation. When each district contains the same population, each member of the community is afforded equal representation. This undertaking, however, is vulnerable to flaws in the data on which the redistricting relies. When district census counts include incarcerated populations (who can’t vote in all but two states), people who live close to the prison have more of a say in government than everyone else because the district’s population is artificially inflated. The practice of using prison populations to dilute the votes of residents in other districts is referred to as “prison-based gerrymandering.”

Of course, when incarceration was not as widespread as it is today, prison populations were, at worst, minimal blips in the redistricting data. The U.S. currently incarcerates 1% of its adult population, a rate far higher than anywhere else on the planet. This forced mass migration of 2.3 million people from their homes to prisons and jails is accompanied by a significant transfer of political power.

And the political effects of prison-based gerrymandering, like those of incarceration generally, are not evenly distributed – with some significant winners and losers by region as well as by race and ethnicity. When prison population counts are used in the redistricting context, the impact on state legislative districts can be dramatic. To use some of the historical examples that inspired two states to pass the first laws to end prison-based gerrymandering:

• In Maryland, one state house district drawn after the 2000 Census drew 18% of its population from a large prison complex. As a result, every four voting residents in the district were granted as much political influence as five residents elsewhere in the state.

• Seven New York state senate districts drawn after the 2000 Census met minimum population requirements only be-cause they included prison populations.

• Virtually all – 98% – of New York’s state prisons are located in state senate districts that are disproportionately white, which dilutes the votes of African-American and Latino voters.

• Of the seven New York state senate districts mentioned above, four of the senators sat on the powerful Codes Committee where they opposed reforming the state’s draconian Rockefeller Drug Laws that boosted New York’s prison population. The inflated populations of those senators’ districts gave them little incentive to pursue policies that might reduce the number of people sent to prison or the length of time they served.
Republican New York state Senator Dale Volker boasted that he was glad the almost 9,000 people confined in his district couldn’t vote, because “they would never vote for me.”1

The impact of prison-based gerrymandering on state legislative districting gets the most attention from policymakers, but the problem is even more significant in rural counties and cities that contain prisons. County board districts and city council districts are smaller than state legislative districts, so a single prison can have a massive effect.

The most well-known example occurred in Anamosa, Iowa, where the state’s largest prison constituted 96% of the population for the city’s second ward. In 2005 there were no second ward candidates for city election, and the winner prevailed with two write-in votes – one cast by his wife and another by a neighbor. Public outrage about the unfairness of granting some residents twenty-five times as much political influence as other voters led Anamosa to change its form of city government.

The example of Anamosa, while extreme, is far from unique. Several other local governments have fallen into the same prison-based gerrymandering trap:

• Lake County, Tennessee drew a district after the 2010 Census in which 87% of the population in County Commissioner District 1 was composed not of local residents, but of people incarcerated at the Northwest Correctional Complex. The result is that there are only 344 non-incarcerated people in the district compared to about 2,500 in the county’s other districts. Four other counties in Tennessee – Wayne, Hardeman, Lauderdale and Morgan – each have a district in which the incarcerated population accounts for over 60% of the district’s “residents.”

• Wisconsin also has a number of county and municipal districts where prison populations constitute the majority of district residents. The Waupun City Council drew a district after the 2010 Census that was 76% incarcerated, and Juneau County drew a district that was 80% incarcerated.

• In the city of McAlester, Oklahoma, more than half of one city ward is incarcerated. Robert Karr, the City Councilor representing the ward where the prison is located, objected, telling the McAlester News-Capital: “It seems this wouldn’t be fair. Prisoners can’t vote so I can’t really represent them.”2 City officials had previously refused to engage in prison-based gerrymandering, but the city’s new charter had an unexpected provision that required the use of the “total city population” reported by the Census Bureau.

• The most troubling example may be from Somerset County, Maryland, where prison-based gerrymandering made it impossible to elect an African-American candidate.
The county, which until 2010 had never elected an African-American to county government, agreed to create one district where African-Americans could elect the candidate of their choice in order to settle a Voting Rights Act lawsuit. Unfortunately a prison was built in the district, resulting in a small African-American vote-eligible population. This made it difficult for residents to field strong candidates and for voters to elect an African-American commissioner. An effective African-American district could have been drawn had the prison not been included in the population count.3

The “Usual Residence Rule”

The Census Bureau traces the prison-based gerrymandering problem back to the “usual residence rule,” which was first developed for the census of 1790. Determining where to count people for census purposes is simple for most groups, but for highly mobile populations and people in special types of non-traditional housing – such as those in “group quarters,” which include prisons4 – there was a need for some standardized guidance. As the National Research Council put it, the goal of the residence rule is to ensure that everyone is counted “Once, Only Once, and in the Right Place.” But what the Census Bureau is not eager to admit in discussions about the usual residence rule is that the rule has evolved over time and that the Bureau itself is responsible for writing it.

Once we set aside the myth that the usual residence rule is set in stone, we can see just how far out of step it is with the rest of the nation. In a nutshell, the Census Bureau is the only organization that considers a prison cell to be a residence. Outside of the Bureau, everyone agrees that incarcerated people do not choose to live in prison.

In general, “residence” is a place where someone voluntarily chooses to reside without a current intention of going elsewhere. Incarceration meets neither the voluntary nor the intent to remain requirements for determining residence.

In the voting context, most states have explicit constitutional provisions or statutes that declare a prison cell is not a residence.5 The application of these provisions has been most frequently debated in the context of voting. While 48 states currently bar people incarcerated for felonies from voting, in most states people who are detained awaiting trial or serving time for misdemeanors may still vote. For those individuals, the rules of most states require incarcerated people who can vote to vote absentee based on their pre-incarceration addresses.

And in other contexts like divorce, research has found that the communities that surround prisons do not view the incarcerated population as a part of their community. For example, people in prison who seek to get divorced are generally referred to the courts in their pre-incarceration home counties. Time and again, courts have observed that incarcerated people are not willing residents of the community where the prison is located – though some elected officials may opportunistically try to claim them as their constituents.

Federal Law Does Not Require Reliance on the Census Bureau

While state and local governments are required by federal law to redistrict each decade, federal law does not in fact require that Census Bureau data be used.6 Most governments rely on the Bureau for redistricting because the data is high quality and free. But the Supreme Court has said that states, and local governments by extension, can use other sources of data.7

One Supreme Court case, Burns v. Richardson, implicitly approved the type of census adjustments for prison populations discussed in this article:

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.8

When states draw their congressional districts they are required to use the “best population data available,” and, although as a general matter Census Bureau data is the best available,9 states are not required to use data they know to be flawed simply because it comes from the Bureau.10

Similarly, the Supreme Court in Mahan v. Howell11 rejected Virginia’s argument that it was compelled to use Census Bureau assignments of residences of military personnel in its state legislative redistricting, and suggested that a state may not use census data it knows to be incorrect.

State and local governments are therefore free, at least under federal law, to create their own census data from scratch, or to simply correct how the federal census counts people in prison. Recently, a federal three-judge panel specifically rejected claims that it is unconstitutional to adjust census data to count people in prison as residents of their pre-incarceration addresses for redistricting purposes.12

As the unadjusted census data fails to meet redistricting needs, many states – some of which had self-imposed requirements to use census data – have relaxed their statutes. For example, Virginia had required all counties to use federal census data for redistricting without any modifications. The law was amended in 2001 to give a handful of counties the choice to remove prison populations from their redistricting data, and in 2012 state lawmakers passed HB 13, which changed the law to basically triple the number of eligible counties.

The Census Bureau is taking note of redistricting officials’ demands to avoid prison-based gerrymandering and is helping them access more accurate data. For the 2010 Census, the Bureau made a critical change in how it publishes its data to make it easier for states and municipalities to draw districts without including prison populations. The Advance Group Quarters Summary file was produced for the first time after the 2010 Census for the explicit purpose of helping governments address the problem of prison-based gerrymandering. As the Census Bureau explained:

This early release of data on the group quarters population may be beneficial to many data users including those in the redistricting community who must consider whether to include or exclude certain populations in redrawing boundaries.... It will permit state and local redistricting officials to overlay this file with the 2010 Census Redistricting Data (Public Law 94-171) Summary File data.13

For this redistricting cycle, Maryland and New York both relied on the Advanced Group Quarters Summary file in conjunction with state corrections department data to reallocate prison populations to their pre-incarceration residences. Courts in both states have approved the laws requiring such adjustments in order to count incarcerated people at their home addresses for redistricting purposes.14

Legislative and Other Reforms

Four states have recently passed legislation to count people in prison at their pre-incarceration residences. Maryland and New York enacted legislation effective for the 2010 round of redistricting. Delaware passed similar legislation, though the state subsequently postponed implementation until 2020.15 Similarly, California passed a bill that will take effect in 2020 after the next federal census.16

The New York law applies to state legislative, county and municipal governmental redistricting.17 Maryland’s legislation is similar but also applies to Congressional redistricting,18 while the Delaware law applies only to state legislative districting.19
Amendments to California’s state constitution in 2008 transferred redistricting authority to the Citizens Redistricting Commission, so the California law asks the Commission to “deem each incarcerated person as residing at his or her last known place of residence, rather than at the institution of his or her incarceration” when drawing future districts, and requires the Department of Corrections and Rehabilitation to provide necessary data to the Commission.20

While state legislation has received the most attention in the press, the greatest impact of prison-based gerrymandering is on county and municipal governments, where a single prison’s population can easily constitute the majority of a local government district. More than 185 counties and municipalities independently chose to reject the Census Bureau’s data after the 2010 Census, and drew districts without including prison populations.
Additionally, in several states, including Michigan,21 Colorado22 and New Jersey,23 exclusion of incarcerated populations is mandatory according to state statutes, while in Mississippi the Attorney General has instructed counties to exclude prison populations when redistricting:

[I]nmates under the jurisdiction of the Mississippi Department of Corrections as well as inmates of local jurisdictions in local jails are not deemed “residents” of that county or locality, as incarceration cannot be viewed as a voluntary abandonment of residency in one locale in favor of residency in the facility or jail.... Such inmates should not be used ... for redistricting purposes by virtue of their temporary presence in a detention facility or jail in the county, unless their actual place of residence is also in the county.24

Impediments to Reform

The most significant impediments to prison-based gerrymandering reform are policy inertia and basic misunderstandings about the mechanics of the criminal justice system and how federal and state funding formulas operate.

In short, the Census Bureau counts incarcerated people as residents of the prison location because that is where they have always been counted. Thankfully, Census Bureau policies are not immutable and as the country, its population and its needs have evolved, so too has the Bureau’s methodology. The problem of the Census Bureau’s method for counting prison populations and the prison-based gerrymandering that results is one new to the era of mass incarceration, and the Bureau’s policies and protocols need to be modernized to address this issue.

Former Census Bureau Director Kenneth Prewitt neatly summarized the problem with the Bureau’s outdated methodology: “Current census residency rules ignore the reality of prison life. Incarcerated people have virtually no contact with the community surrounding the prison. Upon release the vast majority return to the community in which they lived prior to incarceration.”25

The reality noted by Director Prewitt is the fact that, while the prison buildings themselves may exude permanence, the people inside are in fact quite transient. Indeed, in New York State, for example, the median length of stay for incarcerated people at any one prison is only 7.1 months, not the decades that the public often assumes.26

Another common obstacle to prison-based gerrymandering reform is an unsupported fear of negative changes to federal or state funding. Research has found that many people rely on an oversimplification of how census data is used to distribute such funds, which overstates the impact of prison population counts on funding formulas. In general, prison populations have very little impact on the distribution of federal and state funds, and the prison-based gerrymandering reforms discussed in this article would have no impact whatsoever because there are no funding formulas tied to redistricting data.

The confusion about funding arises in part because the Census Bureau encourages participation in the census by appealing to the important use of census data in funding formulas.27 This leads to a misunderstanding relative to how the population data is actually used. Most large federal and state funding formulas – particularly those targeted to individual municipalities or school districts – do not use “total population” for their population component. Instead they use more targeted factors, such as people in poverty (which does not include people in prison or other people not in households), the number of school-age children, or non-census data such as the number of children enrolled in school. As a result, the impact of prison populations on funding formulas tends to be quite small.

This logical conclusion is confirmed by the experience of the more than 100 counties and cities that removed prison population data when redistricting after the 2000 Census, with no ill financial effect.

Reform has been Refreshingly Bipartisan

Not only is there nothing to lose by abolishing prison-based gerrymandering, but everybody who does not live immediately adjacent to the state’s largest prison complex benefits if the practice is ended. At the state level, everyone who lives outside the state legislative district with the largest prison benefits, plus the majority of the people living within that state district benefit at the local level due to more equitable county and municipal redistricting. The successful reform efforts to date have all been structured to maintain a broad coalition of stakeholders that would benefit from reform.

In New York, where a bill to end prison-based gerrymandering ultimately passed on a narrow partisan vote, a Quinnipiac University poll showed it was supported by a majority in the state, both urban and rural, Democrat and Republican, and the bill received editorial support from urban and rural upstate newspapers. Once the law passed, rural supporters fought to keep the legislation in place, resisting pushback from New York lawmakers responsible for drawing the new district lines. When a lawsuit was filed challenging the new law, residents from every area of the state intervened to defend the statute. [Ed. Note: See PLN, Oct. 2012, p.26; Oct. 2010, p.18].

In Delaware, a bipartisan prison-based gerrymandering reform bill passed unanimously in the House. In Maryland, too, the legislation passed with bipartisan, urban and rural support. One white Republican state senator spoke from the floor about why he was voting for the bill, and both lead sponsors had large prisons in their districts. As Delegate Joseline A. Peña-Melnyk explained, “It doesn’t matter. To me, it is just a fair way to count.”28 Senator Catherine E. Pugh agreed, stating, “It was the right thing to do.”29

Solutions and Best Practices

The ideal solution is for the Census Bureau to count incarcerated people as residents of their home communities rather than of the prisons where they are currently held. This federal fix would solve all of the problems that lead to prison-based gerrymandering, but state and local governments that don’t want to wait for the Bureau to act must find their own solutions.

Most state constitutions are silent on the data source to be used for redistricting, leaving the states free to pass legislation to improve the federal census data. A notable exception is Massachusetts, where restrictive language requires the use of the federal census for redistricting, leaving the state with the larger task of amending its constitution or lobbying the Census Bureau for change – the latter being a more speculative effort.30

Model legislation,31 prepared by a coalition of civil rights, voting rights and criminal justice reform organizations, offers a basis for ending prison-based gerrymandering in states that have the constitutional ability to pass laws which require people in prison to be counted based on their pre-incarceration residences. Various political and practical realities may dictate other choices, but the model bill recommends three, somewhat subtle, best practices:

1. The legislation should grant a specific non-legislative agency the task of receiving data from the state Department of Corrections and performing the prison population reallocation process, and there should be specific deadlines for this work to be completed. In many states the Secretary of State is an ideal choice, particularly where the Secretary plays an active non-partisan role in elections administration and has the necessary technical skills. Experience has shown that the question of who is responsible for the reallocation can have a major impact on the process. In Maryland, for example, the statute did not specify which agency would do the reallocation, but the Maryland Department of Planning took the initiative and did an impressive job. New York’s bill gave this task to LATFOR, the state’s partisan redistricting taskforce, but did not specify a deadline.
Partisan wrangling over technical implementation delayed the completion of the process, leading to a federal lawsuit alleging that the legislature was unable or unwilling to implement the statute. Tasking an independent agency with implementation would not remove the risk of the law being later repealed by the legislature, but it would separate the minor technical issues from the larger policy ones.

2. The legislation should apply to county, municipal and other local districts as well as to state legislative districts. While most county and municipal governments already avoid prison-based gerrymandering when redistricting, the exceptions are dramatically negative and the entire process is inconsistent and cumbersome. Politically speaking, proposing one consistent data set for state and local redistricting is a proven way to build urban and rural coalitions to improve democracy for everyone.

3. The legislation should specify that when the proper residential address of an incarcerated person is unknown or in another state, the redistricting data should reflect that individual as being counted at an “unknown geographic location within the state.”
People at “unknown geographic locations” should not be included in the calculations for district size or population deviations. This method is similar to the way overseas military personnel are counted as at-large residents of a state for congressional apportionment but not included in specific districts.32 Notably, this specific aspect of the model bill was endorsed by the NAACP in a 2010 Convention resolution.33

In addition to the issues addressed by the above best practices, there is tremendous variation at the county, municipal and other local levels in how governments adjust the census data and in the level of detail given to documenting the rationale for such adjustments.

Some municipalities and counties adjust the census figures, some cut a hole in their map where the prison is located and some “overpopulate” the district that contains the prison by the exact size of the prison population. To the agency that draws the district lines, these methods are very different but the outcome is the same, and the redistricting professional’s convenience should dictate the methodology.

The justifications for and documentation of the redistricting process are more important. In some cases municipalities and counties note the adjustment on their redistricting map, but the best practice is illustrated in New York’s Essex County, where the county explained its rationale for excluding the prison population in Local Law Number 1 of 2003:

Persons incarcerated in state and federal correctional institutions live in a separate environment, do not participate in the life of Essex County, and do not affect the social and economic character of the towns in which ... the correctional facilities where they are incarcerated are located.

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. This is particularly so if the 1,898 inmates in the town of North Elba are included in its population total of 8,661 since those inmates would then represent 21.914% of the town of North Elba’s population.

The Board of Supervisors finds that the population base to be utilized in and by the plan apportioning the Essex County Board of Supervisors should exclude state and federal inmates.

Putting this rationale into the public record demonstrates the basis for the adjustment to any court that looks at the redistricting, and makes it more likely a decade later, following the next federal census, that the government will recall and repeat its previous decision. There are many examples where municipalities and counties were unaware of the basis of their previous districting maps due to a lack of documentation.

As noted above, the ideal solution is for the Census Bureau to count incarcerated people as residents of their home communities, not of the facilities where they are housed. The Bureau has the legal discretion to determine where to count people in prison. Fortunately, now-former Census Bureau Director Robert M. Groves has given reason to be hopeful, writing in his blog: “Counting members of all group quarters is complicated; we re-evaluate our ‘residence rules’ after each census, to keep pace with changes in the society. We’ll do that again after the 2010 Census.”34

The challenge for advocates seeking change at the Census Bureau is that the public and policymakers tend to pay attention to census issues only every ten years or so, when the data is being gathered and published. The critical policy decisions – and the scientific research to support those decisions – naturally take place between the decennial censuses, when public interest is less intense. We must ensure that the Census Bureau asks the right questions to inform its decisions about improving where incarcerated people are counted. If this opportunity is lost, state and local governments will be forced to continue to develop their own solutions.

The problem of prison-based gerrymandering is a historical accident. Neither the framers of the Constitution nor the Census Bureau ever intended for the electorate’s voting strength to depend in large part on whether or not they live next to a large prison.35 The combination of an old methodology, an unprecedented change in incarceration patterns and a modern constitutional mandate to draw districts on the basis of equal representation has created an undeniable problem for our democracy.

Of course if mass incarceration in the United States ended tomorrow, the need for the Census Bureau to update its prison population counting methodology would evaporate.
Until then, we need to make sure that criminal justice policy decisions – like all policy decisions – are made by the willing majority and are not the result of the Census Bureau counting 2.3 million incarcerated people in the wrong place, for the wrong reasons.

Peter Wagner is Executive Director of the Massachusetts-based Prison Policy Initiative (www.prisonpolicy.org). For the past decade he has been leading a national movement to end prison-based gerrymandering. This article is based on one originally published as “Breaking the Census: Redistricting in an Era of Mass Incarceration” in the Spring 2012 issue of the William Mitchell Law Review.

ENDNOTES

1 See http://prospect.org/article/making-prisoners-count.

2 See www.prisonersofthecensus.org/news/2011/10/25/mcalester-city-okla-councilor-continues-to-question-necessity-of-prison-based-gerrymandering.

3 See Brief of the Howard University School of Law Civil Rights Clinic, et al. as Amici Curiae Supporting Respondents at 8-9, Fletcher v. Lamone, 831 F.Supp.2d 887 (D.Md. 2011), aff’d, or “Maryland Bill” Podcast Episode #2 at
www.prisonersofthecensus.org/news/2010/05/27/podcast2.

4 See www.census.gov/compendia/statab/2012/tables/12s0073.pdf.

5 British common law and virtually all states define residence as the place a person chooses to be without a current intention to go elsewhere. In most states, constitutions and statutes go even further, explicitly declaring that incarceration does not change a residence. See, e.g., Ariz. Const. Art. VII, § 3; Colo. Const. Art. VII, § 4; Minn. Const. Art. VII, § 2; Mo. Const. Art. VIII, § 6; Nev. Const. Art. II, § 2; N.Y. Const. Art. II, § 4; Or. Const. Art. II, § 4; Wash. Const. Art. VI, § 4; Alaska Stat. § 15.05.020(1) (2011); Cal. Elec. Code § 2025 (2011); Conn. Gen. Stat. § 9-14 (2011); D.C. Code § 1-1001.02(2)(D) (2011); Haw. Rev. Stat. § 11-13(5) (2011); Idaho Code Ann. § 34-405 (2011); Me. Rev. Stat. Tit. 21-A, § 112(7) (2011); Mich. Comp. Laws § 168.11 (2011); Miss Code Ann. § 47-1-63 (2011); Mont. Code Ann. § 13-1-112(2) (2011); N.H. Rev. Stat. Ann. § 654:2-A (2011); N.M. Stat. Ann. § 1-1-7(D) (2011); Pa. Cons. Stat. § 1302(A)(3) (2011); R.I. Gen. Laws § 17-1-3.1 (2011); Tenn. Code Ann. § 2-2-122(7) (2011); Tex. Elec. Code Ann. § 1.015(E) (2011); Utah Code Ann. § 20A-2-101(2)(A), -105(4)(C)(iii) (2011); Vt. Stat. Ann. 17, § 2122 (2011).

6 E.g., Burns v. Richardson, 384 U.S. 73, 92 (1966).

7 As the Third Circuit has explained, “Although a state is entitled to the number of representatives in the House of Representatives as determined by the federal census, it is not required to use these census figures as a basis for apportioning its own legislature.” Borough of Bethel Park v. Stans, 449 F.2d 575, 583 n.4 (3d Cir. 1971).

8 Burns, 384 U.S. at 92.

9 Karcher v. Daggett, 462 U.S. 725, 738 (1983) (citing Kirkpatrick v. Preisler, 394 U.S. 526, 528 (1969)).

10 See, e.g., City of Detroit v. Franklin, 4 F.3d 1367 (6th Cir. 1993); Assembly of the State of Cal. v. U.S. Dep’t of Commerce, 968 F.2d 916, 919 n.1 (9th Cir. 1992); Young v. Klutznick, 652 F.2d 617 (6th Cir. 1981).

11 Mahan v. Howell, 410 U.S. 315, 330-332 (1973).

12 Fletcher v. Lamone, 831 F.Supp.2d 887 (D.Md. 2011), aff’d.

13 “Redistricting Data: 2010 Census Advance Group Quarters Summary File,” U.S. Census Bureau (Jan. 12, 2012), www.census.gov/rdo/data/2010_census_advance_group_quarters_summary_file.html.

14 Fletcher v. Lamone, 831 F.Supp.2d 887 (D.Md. 2011), aff’d; Little v. New York State Task Force on Demographic Research and Reapportionment, Case No. 2310-2011 (N.Y. Sup. Ct. Dec. 1, 2011).

15 Del. Code Ann. tit. 29, § 804A (2011).

16 Cal. Elec. Code § 21003 (2012).

17 N.Y. Correct. Law § 71(8) (2012).

18 Md. Code Ann., Elec. Law § 8-701(a) (2011).

19 Del. Code Ann. tit. 29, § 804A(a) (2011).

20 Cal. Elec. Code § 21003 (2012).

21 Mich. Comp. Laws § 46.404 (2011); Mich. Comp. Laws § 117.27a (2011).

22 Colo. Rev. Stat. § 30-10-306.7(5)(a) (2011).

23 N.J. Rev. Stat. § 18A:13-8 (2011); Bd. of Educ. v. N.J. State Bd. of Educ., 858 A.2d 576 (N.J. 2004) (applying to school board districts).

24 Inmate Population in County Redistricting, Op. Att’y Gen. Miss. No. 2002-0060 (2002).

25 Kenneth Prewitt, forward to Patricia Allard & Kirsten D. Levingston, Accuracy Counts: Incarcerated People and the Census, at i (2004), available at http://brennan.3cdn.net/d685e539baf1034ce1_w2m6iixeo.pdf.

26 State of N.Y. Dep’t of Corr. Servs., The Hub System: Profile of Inmate Population Under Custody on January 1, 2008, at 38 (2008), available at www.doccs.ny.gov/Research/Reports/2008/Hub_Report_2008.pdf. The median time to the earliest potential release date was only 15 months. Id. at 18.

27 On average, each person in the Census is worth about $1,300 a year in federal funds, but the funds are not distributed on an average. Very little of this money goes directly to municipalities on the basis of population. The largest federal funding formulas are block grants to states, and population plays only one part in most of the formulas. See Aleks Kajstura, “Census Bureau’s Prison Count Won’t Mean Funding Windfall,” Prisoners of the Census (Apr. 2, 2010), www.prisonersofthecensus.org/news/2010/04/02/census-bureaus-prison-count-wont-mean-funding-windfall.

28 Liam Farrell, “Inmates to Play New Redistricting Role,” The Capital (Annapolis MD), April 27, 2010, at A5, available at www.prisonpolicy.org/news/The_Capital_Annapolis_MD_April_27_2010.pdf.

29 Id.

30 See Peter Wagner and Brenda Wright, Testimony before the Special Joint Comm. on Redistricting of the Mass. Gen. Court (June 27, 2012), available at www.prisonersofthecensus.org/testimony/PPI_Demos_Testimony_MA-2012-Jun-27.pdf.
31 See www.prisonersofthecensus.org/models/example.html.

32 See “Address Unknown” Podcast Episode #1 (May 20, 2010), available at www.prisonersofthecensus.org/news/2010/05/20/podcast1.

33 Crossroads Correctional Center (MO) Branch & San Jose/Silicon Valley (CA) Branch, End “Prison-Based Gerrymandering” Resolution, ratified by the NAACP at the 101st Convention (July 13, 2010), available at www.prisonersofthecensus.org/resolutions/NAACP_2010.html (“Be it Further Resolved, that the NAACP concludes that until the Census Bureau counts incarcerated people as residents of their homes, the fundamental principle of ‘one person one vote’ would be best satisfied if redistricting committees refused to use prison counts to mask population shortfalls in districts that contain prisons...”).

34 Robert M. Groves, “So, How Do You Handle Prisons?,” U.S. Census Bureau Director’s blog (Mar. 1, 2010), http://blogs.census.gov/directorsblog/2010/03/so-how-do-you-handle-prisons.html.

35 In fact, the Bureau explicitly disclaims any responsibility for uses of the data. “As a nonpartisan scientific organization, the Census Bureau is not involved in redistricting.” Id.

Subscribe today

Already a subscriber? Login