V. 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 incarcerated. 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 federal government to act have to find their own solutions.

In most states, the state constitution is silent on the data source to be used for redistricting, leaving states free to pass legislation to improve the federal Census data as Maryland and New York have done. A notable exception is Massachusetts, where restrictive language mandates the use of the federal Census for redistricting, leaving the state with the larger task of amending the state constitution or a more speculative effort to lobby the Census Bureau for a change.

Model legislation --prepared by a coalition of civil rights, voting rights, and criminal justice reform organizations working to end prison-based gerrymandering--offers a basis for ending prison-based gerrymandering in states that have the constitutional ability to pass a law reallocating incarcerated people to their home addresses. 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 the Department of Corrections' data and performing the reallocation procedure 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 who 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 the Legislative Taskforce on Demographic Research and Reapportionment (LATFOR), the partisan redistricting taskforce, but did not specify a deadline. Partisan wrangling over technical implementation delayed the completion of the process, leading to advocates' concerns and a federal lawsuit alleging that the legislature was unable or unwilling to implement the law. Tasking an independent agency with implementation would not remove the risk of a legislature repealing the law, 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 person as being counted at an unknown geographic location within the State. People at unknown geographic locations should not be included in the calculations for ideal district size or population deviations. The method is similar to the way overseas military are counted as at-large residents of a state for congressional apportionment but not included in specific districts. Notably, this specific aspect of the model bill was explicitly endorsed by the NAACP in a 2010 Convention resolution.

In addition to the concerns addressed by the above best practices, at the county, municipal, and other local levels of government, there is tremendous variation in how governments adjust the Census and in the level of detail given to documenting the rationale. I'd like to identify some best practices in this regard.

Some municipalities and counties adjust the Census figures, some cut a hole in their map where the prison is, and some overpopulate the district that contains the prison by the exact size of the prison population. To the line drawer, these methods are very different, but the outcome of each is identical, and the redistricting professional's convenience should dictate the methodology.

The justifications 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 would show the basis for an adjustment to any court looking at the districts, and would make it more likely that the legislature in a decade's time would recall and repeat the previous decision. In our research, we've found many examples where municipalities and counties were unaware of the basis of their previous maps until we performed a population analysis for them.

Finally, the ideal solution is for the Census Bureau to count incarcerated people as residents of their home communities, not the prisons where they are incarcerated. The Census Bureau has the legal discretion to determine where to count people in prison. Fortunately, the Census Bureau director 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.

The challenge for advocates seeking change at the Census Bureau is that the public and policymakers alike tend to pay attention to Census issues only in years ending in 9, 0, and 1 when the data is being gathered and published. The critical policy decisions--and the scientific research to support those policy decisions--naturally take place in the middle of the decade, though, when interest is less intense. We must make sure the Census Bureau asks the right questions to inform its decision about improving where incarcerated people are counted. If this mid-decade opportunity is missed, states and local governments will be forced to continue to develop solutions on their own.

The problem of prison-based gerrymandering is a historical accident. The Census Bureau never intended for your right to vote to depend in large part on whether or not you live next to a large prison. 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 populations has created an undeniable problem for our democracy.

Of course, if mass incarceration ended tomorrow, the need for the Census Bureau to update its prison counting methodology would evaporate. Until then, we need to make sure criminal justice policy--and all policy--decisions are made by the willing majority and are not the result of the Census Bureau counting 2 million incarcerated people in the wrong place.



. Peter Wagner is Executive Director of the Massachusetts-based Prison Policy Initiative.