A Dilution of Democracy: Prison-Based Gerrymandering

A Dilution of Democracy: Dēmos Prison-Based Gerrymandering Every ten years, we conduct a national census that endeavors to make an accurate count of every single resident of the country. But in a distortion of this process, under current practice the Census Bureau counts incarcerated persons not in the community of their legal residence, but where they are imprisoned. Because census data are used to allocate congressional seats and seats in state and local legislatures, jurisdictions with large prisons and prison populations become eligible for greater representation in government on the backs of people who have no voting rights in the prison community and are not considered legal residents of the prison district for any other purpose. At the same time, the home communities of incarcerated persons – usually more urban areas – are shortchanged in terms of political power and representation. The Census Bureau’s current practice was developed two hundred years ago, before prison populations be- came large enough to distort democratic processes. Today, more people live in U.S. prisons than in our three least populous states combined. African Americans are imprisoned at nearly six times the rate of whites, and Latinos at nearly twice the rate of non-Hispanic whites.1 Today, this Census practice undermines the goal of fair representation on which the one-person, one vote doctrine is founded. Indeed, the practice represents a striking modern-day parallel to the Three-Fifths Clause of the original U.S. Constitution that counted slaves as three-fifths of a person for the purposes of apportionment. During the pre-Civil War period, counting non-voting slaves as part of the population base enhanced the South’s influ- ence in Congress at the expense of other parts of the country in choosing the President and Vice-President, although southern Members of Congress clearly did not view slaves as their political constituents. In the same manner, today’s practice results in districts that dilute the voting power of communities that are largely urban and comprised of persons of color, and over-represent rural and suburban, overwhelmingly white legislative districts where prisons typically are located. For example: • 60 percent of Illinois’ prisoners are from Cook County (Chicago), yet 99 percent of them are counted as residents outside the county. • In Texas, one rural district’s population is almost 12 percent prisoners. Eighty-eight residents from that district, then, have the same representation in the State House as 100 residents from urban Hous- ton or Dallas. • Prison-based gerrymandering helped the New York State Senate add an extra district in the upstate region after the 2000 Census. Almost 44,000 persons from New York City – most of them African Americans or Latinos – were counted as residents of predominantly white upstate counties. Without using prison populations as padding, seven upstate senate districts would have to be redrawn, causing line changes throughout the state. When districts with prisons receive enhanced representation, other districts in the state without a prison see their votes diluted. And this vote dilution is even larger in the districts with the highest incarceration rates. Thus, the communities that bear the most direct costs of crime are also the communities that are the biggest victims of prison-based gerrymandering. Inaccurate counts of prison populations also hurt rural areas by distorting local representation. The rela- tively small populations of cities and towns mean that the placement of a single prison can have a significant impact on their population. Rural residents who live in the same community as a prison, but not in its district, have their voting power severely diluted when local districts are drawn. In Anamosa, Iowa, a candidate won election to the City Council with a total of only two votes – from his wife and a neighbor – because 1,300 of the 1,400 total persons in his city council district were inmates of Iowa’s largest penitentiary. The Anamosa City Council districts had equal population on paper, but in reality, only 58 people were eligible to vote in the prison district. Those 58 people had the same representation as each 1,400 people in the rest of the city.2

Dēmos FixiNg the Problem The optimal solution is for the Census Bureau to change its outdated practice and begin counting incarcerated persons as residents of the community where they resided prior to incarceration, and to which they overwhelmingly return upon their release. While insufficient time remains before the 2010 Census to imple- ment that full solution, we must work to ensure that the 2010 Census is the last Census to count two million incarcerated people in the wrong location. In the review and evaluation process that will begin immediately after the current census, we must ensure that the Census Bureau puts in place new policies to count incarcerated persons as residents of their home communities. In the meantime, there are steps we can take to ameliorate the problem. Most importantly, states have the authority to decide the manner in which they will use census data for the purposes of allocating state legislative seats.3 States can correct the census data by collecting the home addresses of people in prison in the state and then adjusting the U.S. Census counts prior to redistricting. Legislation to accomplish this is pending in New York, Florida, Maryland, and Illinois. Alternatively, states and counties can remove the prison populations prior to districting This does not put the prisoners back into their rightful residential communities, but it eliminates the large and unjustifiable vote enhancement created by crediting their numbers to prison districts. Wisconsin has a bill that would exclude incarcerated prisons from the census count for the purposes of apportionment. About 100 rural counties and towns throughout the U.S. currently do this for their own districts. State law in Colorado, Virginia, and New Jersey, as well as an Attorney General opinion in Mississippi, require or encourage the removal of prison populations for local redistricting. This process would be made easier if the Census Bureau agrees to publish detailed, block-level counts of prison populations early enough for states and localities to use for redistricting purposes. Everyone has a stake in a Census count that is fair, complete and accurate. Ending prison-based gerrymandering will benefit urban and rural communities alike and help realize the ideal of one person, one vote that is core to American democracy. Notes 1 Marc Mauer and Ryan S. King, Uneven Justice: State Rates of Incarceration by Race and Ethnicity, The Sentencing Project, July 2007. 2 Sam Roberts, “Census Bureau’s Counting of Prisoners Benefits Some Rural Districts.” New York Times, October 23, 2008, available at http://www.nytimes.com/2008/10/24/us/politics/24census.html. 3 While states must redistrict each decade, they are not required, as a matter of constitutional law, to rely on census data when draw- ing legislative districts. Mahan v. Howell, 410 U.S. 315, 330-32 (1973) (rejecting Virginia’s argument that it had no choice but to rely on the Census Bureau’s assignment of residences of military personnel in its districting); Burns v. Richardson, 384 U.S. 73, 91 (1966). For more info, visit: demos.org Contact: Brenda Wright, Director Democracy Program - bwright@demos.org Press Contact: Timothy Rusch, Director of Communication - trusch@demos.org         

A Dilution of Democracy: Prison-Based Gerrymandering

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