Policy Group Calls RSU 13 Apportionment Unconstitutional

By Shlomit Auciello,
Herald Gazette (Rockland ME)
January 15, 2009

NORTHAMPTON, MASS. (Jan 15): An organization that analyzes the impact of prisons on communities has sided with a St. George School Board member who claims the distribution of voting power on the new Regional School Unit 13 board is unconstitutional.

For some local public officials, however, the claims are not very weighty.

After St. George School Board member Josiah Wilson raised objections to the formula used for determining representation to the new RSU 13 board last month, his story was discovered by Peter Wagner, executive director of the Prison Policy Initiative.

The Northampton, Mass., nonprofit documents the impact of mass incarceration on individuals, communities and the national welfare. Wagner’s report, released Jan. 14, suggests that the U.S. Census policy that calls for the inclusion of prisoners in the count for the localities where they are incarcerated, rather than the communities where they vote and maintain homes, is harmful to democracy.

“Phantom Constituents in Maine’s Regional School Unit 13: How the Census Bureau’s outdated method of counting prisoners harms democracy” is the result of Wagner’s research into the effect of a discrepancy between the 2000 Census (and the resulting numbers used for vote apportionment for the RSU 13 board), and the actual population of the town of Thomaston.

“Under federal law, each resident of a community must have the same access to government,” the report states. Wagner goes on to describe the court decisions of the 1960s and 1970s that led to what is called the One Person One Vote Rule and the processes that the federal government, states and municipalities use to determine districts for fair voter apportionment.

“Instead of drawing districts, smaller governments like that of Regional School Unit 13 often use other methods to comply with One Person One Vote,” the report states. “The school district chose to use a system of weighted voting, where each town elects one or more members to the school board, and each member exercises influence in proportion to the population they represent.”

Wilson’s complaint, which he filed in the form of a letter to Maine Commissioner of Education Susan Gendron in late December, is based on a discrepancy in census numbers for the town of Thomaston, used by the regionalization planning committee, that included more than 400 prisoners at the Maine State Prison who are no longer in residence now that the prison in that town has been closed.

David Connerty-Marin is a spokesman for the Department of Education. He said Dec. 19 that as far as the department is concerned the plan submitted for RSU 13 was done according to requirements, and the different population numbers would not call for a shift in the number of representatives for any of the RSU’s towns as long as that plan is in place.

Wagner claims this takes votes away from the residents of the other five towns in the district, since the votes were not weighted on the basis of the actual population of the town of Thomaston.

“The current system gives every group of 10 residents of Thomaston the same power over school district decisions as 11 residents in the other towns,” his report states.

“About 11 percent of the population used to determine Thomaston’s weighted votes on the school board is actually people who used to be incarcerated at the Maine State Prison,” the report states. “The designers of the school board’s weighted voting system have given every group of 10 residents of Thomaston the same power over school district decisions as each group of 11 residents in the other towns.”

Wagner suggests in his report, and throughout the Prison Policy Initiative Web site, that even if the prisoners were still housed in Thomaston their numbers should not be used for determining board representation, and Maine law seems to back him up.

According to the section on residence for voting purposes (21-A M.R.S. S 112) the statute says, “A person does not gain or lose a residence solely because of the person’s presence or absence … while kept in any institution at public expense.”

Wagner said the law that has prisoners in the Pine Tree State vote by absentee ballot in their home communities, and Thomaston’s subtraction of the prison population when calculating the population of the town after the 2000 Census, are evidence that the regionalization planning committee got it wrong.

“The current weighted voting system violates the U.S. Constitution,” the report states. It offers tables to illustrate the current apportionment method and two possible solutions to the problem.

“Any other action will come at the expense of the almost 15,000 residents who do not live in Thomaston,” the report states.

Thomaston Town Manager Valmore Blastow Jr. said Jan. 14 that Wagner’s report is “much ado about nothing.”

“The Census is just as accurate a count as possible of population with some variable of error,” he said. Changing the vote apportionment methods for RSU 13 wouldn’t alter the outcome in any significant way, he said.

Wagner’s Table 1 shows 73 votes for each of Thomaston’s three directors, and the proposed methods in Tables 2 and 3 end up giving the directors 67 votes each. Overall, Blastow said, a change in method would only mean a difference of 18 out of a possible 1,008 apportioned votes. “It’s the number of directors, not this supposed constitutional challenge, that has merit in an outcome,” he said.

Julie Flynn agrees. Flynn is deputy secretary of state at the Maine Bureau of Corporations, Elections and Commissions.

Flynn said Jan. 14 that the Census is the basis of state and federal legislative districts and that it would be impractical to recalculate the numbers when they change between the 10-year Census periods.

She said she was uncomfortable commenting on the specifics of the RSU 13 situation because her department has no jurisdiction over municipal or school district elections. “The easier way would have been to change the school district rules,” she said.

One alternative she mentioned was used in Harpswell, where every voter in the district can vote for any candidate district-wide. “That’s how you do it in an unapportioned way,” Flynn said. In this scenario, all board members are considered to be at-large representatives of the entire district.

While the distribution of numbers in RSU 13 means that changing the method in this case would not significantly alter the outcome, in communities such as Orono, where University of Maine students swell the Census count, or Warren, where the 2010 Census will include approximately 900 inmates of the state prison system, the differences may matter more.

For RSU 13, the decision whether to change the method by which each voter in the six towns receives representation will rest with the board that is elected on Tuesday, Jan. 20.

Wagner’s report can be found at prisonersofthecensus.org/maine.

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