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Prisoner Dilemma

Republicans challenge law that would count inmates in their homes, not where they are incarcerated

by Taylor Morris on April 14, 2011 · 2 comments

In August 2010, then-Gov. David Paterson signed a budget extender that included a bill, championed by then-Sen. and current Attorney General Eric Schneiderman and Assemblyman Hakeem Jeffries (D-Brooklyn), that banned prison-based gerrymandering, the practice that counts inmates as residents of the district they’re incarcerated in, rather than the home districts they came from and usually return to once released from prison. Early last week, nine GOP state senators—along with 10 of their constituents—filed a lawsuit attempting to block the legislation.

The defendants, New York State’s Department of Correctional Services—who declined to comment on the lawsuit—and the Legislative Task Force on Redistricting, face a united legal challenge, fronted by lead plaintiff Sen. Betty Little (R-Queensbury). Little’s district, home to 13 state and federal prisons, houses more than 14,000 inmates, giving her district the highest prisoner population in the state.

Critics of prison-based gerrymandering say inmates are “prisoners of the census,” a nonvoting bloc that dilutes the voting power of their own urban, racially mixed home districts,  because they are counted in rural, predominantly white districts during census time. This math hurts downstate communities and dilutes minority votes, according to the NAACP’s Legal Defense Fund report “Captive Constituents.” While African-Americans make up 12.7 percent of the general population, they account for 41.3 percent of state and federal prison populations, and while the average prison stay in the United States is three years, inmates counted as residents of prison districts— districts where they are not allowed to vote—are represented there for a full decade. Supporters of the Schneiderman-Jeffries law claim that counting prisoners as upstate constituents overrepresents rural prison district populations and gives those district’s voting members more political sway.

If prison-based gerrymandering stops, Little’s district, among others, would have to be redrawn to meet population-size requirements mandated by New York’s Constitution.

Peter Wagner, director of the Prison Policy Initiative, thinks Little and Co.’s suit is a “debate about going backwards” in an attempt to “bring back a practice nobody wants.” While Wagner agreed that Little’s district—along with other districts involved in the suit—would have to be redrawn, he sees little room for concern, calling Little a popular senator who should have little trouble getting reelected even if district lines shift. Wagner took issue with the idea that districts will “disappear,” a claim opponents of the law make in defense of the old policy. “The district would exist, it would have to be redrawn, but the district would still exist.”

Wagner is not the only person siding with the Schneiderman-Jeffries law. Essex County, located inside Little’s 45th District, passed a law in 2003 claiming that “[counting] inmates unfairly dilutes the votes” of its citizens and that “persons incarcerated . . . do not participate in the life of Essex County.”

Critics of prison gerrymandering warn of the real-world implications the system can bring, as seen last year in “Captive Constituents,” which examined the small town of Anamosa, Iowa. In 2002, controversy arose over the town’s four election wards, made up of roughly 1,370 people. Ward 2 was home to Anamosa State Penitentiary, which housed 1,320 nonvoting inmates, giving the roughly 50 voting residents of the ward the same voting power as 1,370 residents.

Similar issues are happening closer to the Capital Region, where in Rome, according to the Prison Policy Initiative, 49 percent of the population of City Council Ward 2 is incarcerated, giving the remaining 51 percent of constituents double the voting power when compared to neighboring wards.

The plaintiffs in the lawsuit, represented by David L. Lewis, deflected questions to counsel, declining to comment on the ongoing legal proceeding. When asked about the suit, Lewis said, “it is our position that the lawsuit speaks for itself. Any other answers will be made in court proceedings.”

Adam Tabelski, spokesman for Sen. Maziarz (R-Newfane), another plaintiff in the suit, was willing to comment, saying, “The law that Senator Maziarz and several of his colleagues are seeking to overturn contradicts the census, it contradicts the constitution.” The contradiction Tabelski refers to is from Article III, Section 4, which says the census “shall be controlling . . . for the purposes of the apportionment.”

Schneiderman-Jeffries supporters also cite New York’s constitution: “For the purpose of voting, no person shall be deemed to have gained or lost a residence, by reason of his or her presence or absence . . . while confined in any public prison.”

Census Bureau chief Robert Groves gives states the choice in counting inmates, saying in a post on the census website last year, “This decade we are releasing early counts of prisoners . . . so that states can leave the prisoners counted where the prisons are, delete them from the redistricting formulas, or assign them to some other locale.”

According to Wagner, New York has one of the most “leisurely” redistricting schedules, so the suit is “still not a huge crisis” but could affect the process if litigation becomes lengthy. New York’s new districts will be drawn and approved in time for next year’s elections.