Census treatment of incarcerated felons unfairly dilutes voting strength of non-prison communities


Brenda Wright, National Voting Rights Institute (617) 624-3900, ext. 13
Peter Wagner, Prison Policy Initiative (413) 527-0845

Today, the full U.S. Court of Appeals for the Second Circuit is hearing arguments in two cases alleging that New York's felon disenfranchisement laws violate the Voting Rights Act and the U.S. Constitution (Muntaqim v. Coombe and Hayden v. Pataki). The National Voting Rights Institute and the Prison Policy Initiative have filed an amicus brief with the Court arguing that the Court should consider the redistricting implications of disenfranchisement as part of the "totality of circumstances" which must be examined under the Voting Rights Act. The brief highlights the New York State legislature's racially discriminatory redistricting practice of crediting rural white counties with additional population based on the presence of disenfranchised prisoners in upstate prisons.

New York State is majority White (62%), but its prison population is majority Black and Latino (82%), so disenfranchising prisoners and parolees results in a disproportionate bar to Black and Latino political participation. In their brief, the National Voting Rights Institute and the Prison Policy Initiative provide new information to the court showing how New York State's disenfranchisement practices combine with its redistricting practices to diminish the voting strength of non-incarcerated persons of color in the prisoners' home communities.

In drawing state legislative districts, New York uses Census Bureau data that counts the state's mostly urban and minority prisoners as residents of the mostly white and rural prison counties rather than as residents of the home communities where they resided prior to incarceration, where they are deemed legal residents for most other legal purposes. Several upstate legislative districts lack sufficient population to meet accepted one-person, one-vote standards without counting disenfranchised prisoners as part of their population base. At the same time, heavily minority districts in New York City would in all likelihood be entitled to additional representation if prisoners were counted as residents of their home communities for purposes of redistricting.

The brief argues that New York's practice has an historical parallel that the Court should be disinclined to follow. "The practice bears a striking resemblance to the original 'Three-Fifths' clause of the United States Constitution, which allowed the South to obtain enhanced representation in Congress by counting disenfranchised slaves as three-fifths of a person for purposes of congressional apportionment," says Prison Policy Initiative Assistant Director Peter Wagner.

Brenda Wright, managing attorney of the National Voting Rights Institute and the author of the brief, says: "New York's decision to credit disenfranchised prisoners to largely white counties, rather than their home communities, is a critical example of racial discrimination the court should consider."

In the two cases, the Second Circuit has taken the unusual step of granting in banc review by all active judges on the Court. The lower courts initially ruled against the plaintiffs and held that Section 2 of the Voting Rights Act does not permit a challenge to prisoner disenfranchisement. The amicus brief of NVRI and the Prison Policy Institute, filed on January 28, 2005, is available on NVRI's website at: http://www.nvri.org/about/new_york_state_policies.shtml and in hypertext on the PPI site at http://www.prisonpolicy.org/reports/muntaqim.html.

The National Voting Rights Institute is a nonprofit, nonpartisan legal center. Through litigation and public education, NVRI seeks to make real the promise of American democracy that meaningful political participation and power should be accessible to all regardless of economic or social status. The Prison Policy Initiative conducts research and advocacy on incarceration policy. Among its publications are a report, Importing Constituents: Prisoners and Political Clout in New York , which documents how the transfer of a large, non-voting population to upstate prisons, where it is counted as part of the population base for redistricting, artificially enhances the representation afforded to predominantly white, upstate legislative districts.


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