Report to U.N. Committee for the Elimination of Racial Discrimination that U.S. Census practices dilute votes of minority populations

In December 2007, Demos: A Network of Ideas and Action and the Prison Policy Initiative joined a report [PDF] to the Committee for the Elimination of Racial Discrimination in Geneva to say that the racially discriminatory redistricting practice of crediting rural white counties with additional population based on the presence of disenfranchised prisoners violates Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination. The United States ratified the CERD treaty in 1994, and therefore is bound under international law to work to eliminate policies that are intentionally or unintentionally racially discriminatory.

The treaty obligates each country to report every two years on its progress at eliminating racial discrimination. The United States submitted its report [PDF] in April and will be questioned by the CERD Committee in Geneva in March 2008. The Committee looks to individuals and organizations in each country to critique the reporting country's report and to highlight omissions.

Text of the Census/Redistricting section in the shadow report to the CERD Committee:

Forty eight of the fifty states[1] refuse to allow people in prison to vote, in violation of Article 5 of the CERD which requires universal suffrage and prohibits actions that reduce the ability of racial groups to exercise political rights. This disfranchisement disproportionately affects U.S. Blacks and Latinos, who are 60% of the U.S. prison population[2], but only 27% of the total population.[3]

In this section we address the practice by which states credit these disfranchised Black and Hispanic prisoners disproportionately to white legislative districts, which constitutes a separate violation of Article 5.

U.S. Supreme Court decisions require each state's legislative districts to be substantially equal in population. In this way, each resident is given the same representation in government. To account for changing populations, each state must update its districts at least once per decade.

However, all 50 states draw their districts based on flawed data from the U.S. Census that counts prisoners as if they were residents of the prison location, not of their home addresses. Under U.S. common law, people are residents of the place they choose to reside with an intent to remain, and as incarceration is involuntary, it should not qualify as a residence.[4] In most states, this is explicit. For example, the New York State Constitution declares: "for purposes of voting, no person shall be deemed to have gained or lost a residence, by reason of his presence or absence ... while confined in any public prison."[5]

Yet all 50 states insist on using the flawed Census data to apportion their legislative districts, resulting in dilution of the votes of the urban and communities of color from which prisoners disproportionately come. According to Importing Constituents: Prisoners and Political Clout in New York, the first study to quantify the redistricting impact of disfranchised prison populations, counting people in prison as residents of the prisons and not their homes cost New York City a net loss of 43,740 residents to prison towns outside the city.[6] The transfer of this large, predominantly of color, non-voting population to upstate prisons, where it is counted as part of the population base for state legislative redistricting, artificially enhances the representation afforded to predominantly white, rural legislative districts.

In New York State, 62% of the population is white[7], but the prison population is 82% Black or Latino.[8] Sixty-six percent[9] of prisoners come from New York City, but all of the 43 new prisons built in New York since 1976 have been built outside the city in disproportionately white areas.[10]

As a result, 98% of New York State's prisoners — who are not allowed to vote — are credited to state Senate districts that are disproportionately white as compared to the State's overall population.[11] These white legislators whose districts are dependent on including prison populations make little pretense of providing actual representation to the prisoners in their districts. Indeed, representatives of such districts do not merely ignore their incarcerated constituents, but advocate policies inimical to their interests. Two upstate white state senators, Dale Volker and Michael Nozzolio, whose districts contain 17% of the state's prisoners, have been the strongest advocates of retaining New York State's harsh Rockefeller Drug Laws requiring long mandatory prison sentences.[12]

Senator Volker has been particularly blunt in denying that he represents the interests of the 8,951 prisoners assigned to his district, 77% of whom are Black or Latino. As reported in a 2002 interview,

Senator Volker says it's a good thing his captive constituents can't vote, because if they could, "They would never vote for me."[13]

Senator Volker has more prisoners in his district than any other senator except one.[14] Without the prison population, Senator Volker's district would not have sufficient population to qualify as a district under the U.S. Supreme Court's one-person-one-vote rule; yet he disclaims any interest in representing the prisoners who are crucial to his senate seat. This problem is not limited to New York. For example, prisoners constitute 12% of the population of one Texas legislative district[15], and 15% of one Montana district[16].

Thus, apportioning state legislative districts with data that credits disfranchised Black and Latino prisoners to white legislative districts dilutes the voting strength of Black and Latino populations, in violation of the United States' obligation under Article 5, which gives all groups the equal right to "to take part in the Government as well as in the conduct of public affairs."

Footnotes

[1] All states but Maine and Vermont currently bar people in prison for felonies from voting.

[2] Paige M. Harrison and Allen J. Beck, Prisoners in 2005, Bureau of Justice Statistics, p. 8 (November 2006) available at http://www.ojp.usdoj.gov/bjs/pub/pdf/p05.pdf (last viewed September: 26, 2007)

[3] U.S. Census 2000 Quick facts. Available at http://quickfacts.census.gov/qfd/states/00000.html (last viewed: September 26, 2007)

[4] Stifel v. Hopkins, 477 F.2d 1116 (6th Circuit 1973).

[5] N.Y. Const. art. II, S 4.

[6] Importing Constituents (Main Report, Part IV), available at http://www.prisonpolicy.org/importing. Importing Constituents combines Department of Correctional Services data on the demographics of its prison population with the legislative district lines and data published by the New York State Legislative Task Force on Demographic Research and Reapportionment. Hereinafter Importing Constituents.

[7] U.S. Census 2000, Summary File 1, Table P4, and New York State Department of Correctional Services, The Hub System: Profile of Inmates Under Custody on January 1, 2000 p. i (2000).

[8] Ibid.

[9] Importing Constituents (Further Research & Methodology).

[10] Ibid.

[11] Peter Wagner, Prison Policy Initiative, "98% of New York's prison cells are in disproportionately white districts," (posted January 17, 2005), available at http://www.prisonersofthecensus.org/news/2005/01/17/white-senate-districts/ (last viewed Sept. 23, 2007).

[12] Importing Constituents (Main Report, Part VI and Fig. 10.)

[13] Jonathan Tilove, Minority Prison Inmates Skew Local Populations as States Redistrict (2002), at http://www.prisonpolicy.org/news/newhousenews031202.html (last visited September 26, 2007).

[14] Importing Constituents (Fig. 10)

[15] Peter Wagner and Rose Heyer, Prison Policy Initiative, Importing Constituents: Prisoners and Political Clout in Texas, Prison Policy Initiative (November 2004), available at http://www.prisonersofthecensus.org/texas (last viewed September 23, 2007).

[16] Peter Wagner, Prison Policy Initiative, Importing Constituents: Prisoners and Political Clout in Montana, Prison Policy Initiative, (December 2004) available at http://www.prisonersofthecensus.org/montana (last viewed September 23, 2007).

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