Prison Law Blog

Sara Mayeux

States that Don’t Fix Prison-based Gerrymandering May Face Lawsuits

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If you want political power, you should move to City Council Ward 2 in Anamosa, Iowa. There, you’ll only have to share your City Council representative with 57 other constituents! In any of Anamosa’s other three wards, you’d have to share your representative with about 1,370 other constituents. How is this possible? Through the magic of prison-based gerrymandering. Anamosa’s Ward 2 contains a state penitentiary home to about 1,320 inmates, who get factored into the population count for the purpose of City Council districting even though they can’t vote, and are unlikely even to be from Anamosa.

That’s an extreme instance of prison-based gerrymandering, but it’s not as extreme as you might think. The NAACP Legal Defense Fund has produced an informative publication, Captive Constituents (PDF download), that outlines the democracy-distorting effects of counting prisoners where they’re incarcerated when drawing state and local election districts. As the example of Anamosa demonstrates, prison-based gerrymandering is not primarily an urban-rural or racial issue. It dilutes the votes of everyone who doesn’t live in a district with a prison — like the rural Iowans who live in Anamosa City Council Wards 1, 3, and 4.

That said, prison-based gerrymandering undeniably has unique effects on urban minority communities. In New York, for example, 66% of the state’s prisoners come from New York City (and within NYC, predominantly from Brooklyn and the Bronx) yet 91% of them are incarcerated in rural upstate New York. There are seven New York State Senate districts that simply would not exist — that is, they would not meet the minimum population requirements under federal law — were it not for the 43,000 New York City residents incarcerated in Upstate New York.

Kristen Clarke of the NAACP LDF’s Political Participation Group touched on these issues during last month’s census and redistricting panel at the American Constitution Society convention in Washington, D.C. The full audio and video of the panel are available from the ACS website here, and Clarke’s comments on prison-based gerrymandering begin at about 26:00. As states and localities begin the 2010 redistricting cycle, they may want to keep Clarke’s warning in mind:

The dilution of minority voting strength that results from [prison-based gerrymandering] is something that may be actionable under Section 2 [of the Voting Rights Act], and states should be wary.

The threat of litigation is not merely hypothetical. In Rhode Island, whose state legislative districts are likely to be the most distorted in the country if prison-based gerrymandering is employed in the 2010 redistricting cycle (see this PDF link), the local ACLU is on record:

Steven Brown, executive director of the Rhode Island affiliate of the American Civil Liberties Union, said state law says ACI inmates who can legally vote, mainly those awaiting trial or some held on misdemeanor convictions, must do so by absentee ballot from their listed city or town of residence, not Cranston or the ACI.

He said that statute, and what he saw as a violation of the federal one-person, one-vote standard that the council imbalance represents, could form the basis of a legal challenge.

“The idea of litigation is something we’ll be looking into,” Brown said.

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