Where to count prisoners poses redistricting dilemma

Where to count prisoners poses redistricting dilemma

March 22, 2011

By McClatchy-Tribune News Service

WASHINGTON — After he was elected in November as the first black county commissioner in the 344-year history of Somerset County, Md., Craig Mathies Sr. confessed that he hadn’t exactly run an intense campaign. He had knocked on fewer than 15 doors.

“I figured if God meant for this to happen, it would happen,” the pastor, civil rights activist and former car salesman told the Baltimore Sun. “It did.”

What Mathies didn’t mention was that you don’t have to knock on a whole lot of doors in his county district: He won with just 307 votes. Somerset County, at the southernmost point on Maryland’s Eastern Shore, is a mostly rural place, but it’s not that sparsely populated. The other districts in the county produced at least 1,400 votes, compared with the 542 cast in Mathies’ District 1.Where were the rest of the people of District 1? A place where Mathies had no incentive to look for votes. More than 3,300 of his constituents are locked up in the 620-acre Eastern Correctional Institution Complex, Maryland’s largest state prison. They can’t vote.

Most of the inmates aren’t from Somerset County. Few of them are likely to stick around once they’re released. Nor does Mathies plan to work on behalf of the inmates as a county commissioner. He couldn’t do much for them if he wanted to.

“That’s state-operated and state-funded,” he points out. “We don’t have to budget any money for the state prison system.”

Despite all that, in one key sense the inmates of ECI really are Mathies’ constituents. When Somerset County’s commission districts were redrawn a decade ago to reflect the latest census numbers, the prisoners counted just as much toward equalizing the population of the districts as the county’s lifelong residents and regular voters. That’s why today District 1 has only 1,400 registered voters, while every other district in the county has at least 3,000. The situation represents a serious imbalance in political power.

Soon, that will change. Last year, Maryland became the first state to require that, for the purposes of local, state legislative and congressional redistricting, prisoners must be counted at their last permanent address — not the place where they’re incarcerated. New York and Delaware have passed similar laws.

These laws reflect a sentiment that counting prisoners where they’re incarcerated is unfair — both to the place the prisoners came from and to the voters in any constituency, like Somerset County districts 2 through 5, that doesn’t have a prison.

But figuring out a permanent address for prisoners isn’t always simple. What do you do with those who were previously homeless? Or have no permanent address on record? The movement to change where prisoners are counted will catch on across the country only if Maryland, Delaware and New York come up with satisfactory answers to those sorts of questions. Maryland is going first. It will announce adjusted numbers soon.

Today, for redistricting purposes, every state uses the population data the U.S. Census Bureau provides. Whether they realize it or not, that means they’re accepting the census standard for deciding where people are counted. And the census counts people at their “usual residence.” It doesn’t matter if their legal address is elsewhere. What matters is where they most often live and sleep. For inmates, of course, that’s in prison.

Somerset District 1 illustrates the peculiar effect those counts can have on political outcomes. In the 1980s, civil rights activists sued Somerset County, arguing that at-large county commission districts were preventing black candidates from winning elections. A federal judge agreed. A district system was implemented.

But it didn’t achieve the desired effect. The newly drawn District 1 was composed largely of minorities, many of whom were college students registered elsewhere. Soon after, the prison opened, adding more non-voters to the district. A white commissioner held the seat for 24 years. Only when he decided last year not to run again did Mathies make history.

The location that placed this whole issue on the national radar wasn’t Somerset County, Md., however. It was New York, where the state Senate map drawn 10 years ago used prison counts to boost the representation of Upstate Republican counties, where a disproportionate number of state prisons are located. Many of the prisoners were minorities who came from overwhelmingly Democratic places downstate. But they were only represented demographically, not politically. And that led to calls for change.

There are two states, Maine and Vermont, that allow incarcerated convicts to vote. But both use the inmate’s address outside of prison as his voting address. That’s the standard advocates for prisoners would like to see used.

“People in prison are being used in many ways as filler,” says Justin Levitt, a professor at Loyola Law School in Los Angeles. “The districts’ population is built on the backs of the ghost population.”

Lawmakers in New York with prisons in their districts see the issue differently. Their argument is that the rules for prisoners shouldn’t be any different than those for anyone else. After all, there are other groups of people, such as college students or nursing home residents, who often live somewhere other than their permanent legal address. Adjustments aren’t made for those populations.

But the New York legislature, while briefly under Democratic control in 2009, voted to change the law to reassign the “ghost population.” Republicans now control the Senate again but they don’t have the votes to repeal it.

Still, some Republicans haven’t given up. “The people aren’t residents of those locations that they’re trying to move them back to,” says E. Mark Braden, a GOP redistricting lawyer. “This is all about trying to take over the New York Senate.”

The debate about fairness has obscured another question: How, exactly, do you figure out where a prisoner came from? This is a harder question to answer than you might think.

It’s not the math that’s difficult. “This is a population that’s counted multiple times a day,” notes Peter Wagner, executive director of the Prison Policy Initiative. Lots of local governments already remove prison populations when they redraw the districts for city and county offices, including many in New York. That allows them to avoid the distortions experienced by Somerset County, Md.

The real challenge, as the Census Bureau discovered when it studied the issue in 2006, is figuring out where to count prisoners instead of in prison. States lack consistent records for prisoners’ “permanent home of record.”

The Bureau said this would mean that each prisoner would have to be contacted individually to make the change. Even then, there would be no guarantee that prisoners would provide accurate or usable information. The Bureau said the process would cost $250 million — far more than what it cost to count prisoners in the 2000 Census. Not surprisingly, Congress didn’t make the change.

There’s some precedent for states to deal with these issues. Kansas already uses its own mini-census of college students and military personnel to move them to their permanent addresses for state legislative redistricting. Maryland, however, is the first state that’s sorting through these challenges for the prison population. When a new prisoner enters the Maryland correctional system, staff records a home address. To do that, they rely on court records and pre-sentence reports. If those documents aren’t helpful, they ask the prisoners themselves.

Those addresses now are being “geo-coded” by Maryland state employees — they’re being translated into the census address information. The geo-coding isn’t always possible, though. Sometimes there’s no previous address on file at all. In that case, the prisoners are counted as residents of the correctional institution — the same way they’ve been counted before.

New York plans to do it differently. If the state can’t find an address for a prisoner, it will simply remove him or her from the count for redistricting purposes.

The courts might not go along with these methods. “Down the road, it’s very likely that this will be challenged constitutionally,” says Karl Aro, executive director of the Maryland Department of Legislative Services. “We’re on the leading edge here. This is a new area of law.”

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