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The Power of Now
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(New York) --The NAACP Legal Defense and Educational Fund, Inc. (LDF) congratulates the New York State Senate for passing legislation to end prison-based gerrymandering in New York. Their courageous decision will bring New York’s redistricting process in line with basic principles of democracy, and will serve as a model for other states in the effort to count incarcerated populations correctly in the next round of redistricting.
Until now, New York counted prison populations during the redistricting process as most states do: by counting them where they are incarcerated, a practice known as “prison-based gerrymandering.” Prison-based gerrymandering violates the principle of one person, one vote enshrined in the Fourteenth Amendment to the United States Constitution, which requires that election districts be roughly equal in size, so that elected officials each represent the same number of constituents.
Prison-based gerrymandering artificially inflates population numbers – and thus, political influence – in districts where prisons are located, at the expense of all other districts. With approximately 60,000 incarcerated persons in New York State, the proper counting of incarcerated individuals is critical to ensuring fair representation throughout the state.
African-Americans living in New York are incarcerated at a rate that is more than eight times higher than that of whites. African-Americans and Latinos are 30% of the state’s population, but over 70% of its prisoners. 98% of New York’s prison cells, however, are located in disproportionately white State Senate districts.
“Because incarcerated persons in the United States are disproportionately African-Americans and other people of color, the current counting of incarcerated persons at their place of incarceration, rather than at their pre-arrest residence, severely weakens the voting strength of entire communities of color. Ending prison-based gerrymandering in New York will enable state and local officials to better fulfill their obligations under the federal Voting Rights Act,” said John Payton, LDF President and Director-Counsel.
New York—like nearly every other state—defines a person’s domicile as a place where that person voluntarily resides. Article II, Section 4 of the New York Constitution makes clear that an incarcerated person retains the place of residence he or she had prior to arrest. This rule comports with common sense: incarcerated persons do not choose the districts where they are confined, and can be moved at any time at the discretion of the Department of Corrections Services. They have no opportunities to interact with or develop enduring ties to the surrounding communities. They cannot use local services such as parks or libraries. And, of course, incarcerated persons cannot vote in those communities. They are not “constituents” of those districts in any ordinary sense of the word.
By contrast, incarcerated persons remain legal residents at their pre-incarceration addresses. They maintain ties to the outside world through their families and other relationships in their home communities. At the end of their sentences, they are released to those communities. The average length of incarceration is less than three years, but the prison count remains in effect for a decade. By counting incarcerated residents of these communities elsewhere, prison-based gerrymandering deprives these districts of the proper level of political representation to which they are entitled.
LDF, the nation’s oldest civil rights law firm, is committed to the full and equal participation of all persons in our democracy, and applauds the passage of this landmark legislation in New York, which follows similar bills in Maryland and Delaware earlier this year. “We urge Governor Paterson to sign this important legislation into law, and call on other states to enact similar legislation before the next redistricting cycle begins,” said Dale Ho, Assistant Counsel in LDF’s Political Participation Group. “Moving forward, the Census Bureau should ease the burden on state and local governments by changing its enumeration methods to count prisoners in their home communities in the next decennial census.”