Those interested in the impact of incarcerated felons on apportionment might
be interested in the article below.

Minority Prison Inmates Skew Local Populations as States Redistrict

by Jonathan Tilove, Newhouse News Service.
March 12, 2002

The inmates at Attica prison in western New York state are represented in
Albany by state Sen. Dale Volker, a conservative Republican who says it's

a

good thing his captive constituents can't vote, because if they could,

"They

would never vote for me."

Even so, the very presence of the more than 11,000 inmates at Attica and
seven other correctional facilities in Volker's vast rural district
buttresses his incumbency as New York redraws its legislative and
congressional lines in accordance with the 2000 Census.

Prisons can be a coveted prize in this process, swelling a district's
population with constituents who cannot vote. Most of America's huge

prison

population is black or brown, and many of America's prisons are located in
very white rural areas, so counting prisoners where they are incarcerated
effectively redistributes power away from urban communities of color.

The beneficiaries are often legislators like Volker, a former police

officer

who chairs the New York state Senate committee that has overseen
get-tough-on-crime and prison policies that have made corrections such a
lucrative growth industry in remote districts.

The issue hasn't gained much serious attention or debate at the national

or

state levels. But growing numbers of local officials are confronting the
distorting effects of drawing town or county district lines in sparsely
populated communities with big prisons.

Officials in a couple of Cajun parishes in Louisiana have obtained the
state's OK not to count their local prison numbers in drawing school board
district lines. A bill sailing through the Colorado Legislature would

remove

the prison population from the census numbers used by counties in their
internal redistricting. And county commission members in the Florida
Panhandle's Gulf County have ignored an opinion by the state attorney
general that they must count inmates at the large Gulf County Correctional
Institution and a nearby work camp in redrawing districts.

"They don't pay taxes, they don't have the right to vote, there is no

reason

to count them," said Nathan Peters Jr., a longtime Gulf County

commissioner

who lives in Port St. Joe.

The phenomenon also raises fundamental questions of fairness: Is it right
that America's prison population, now mostly black and brown, should be
counted in a manner that augments the power of communities with which they
have no real connection or common interests?

"Allowing white, rural districts to claim urban black prisoners as

residents

for purposes of representation resembles the old three-fifths clause (of

the

Constitution) that allowed the South extra representation for its

slaves --

extra representation that kept the North from abolishing slavery long

before

the Civil War," said Peter Wagner, who has researched the issue as a law
student at Western New England College in Springfield, Mass., and as a
founder of the Prison Policy Initiative. The initiative analyzes prison
issues and advocates reforms.

As a case study, Wagner looked at New York. Since 1982, all new prisons
there have been built upstate. Almost half the state's prisons are in the
state Senate districts of four upstate Republicans who, if they could not
count inmates, would have to stretch their district lines to encompass

more

people, setting in motion a ripple effect that eventually would reduce the
Republican electorate in competitive districts closer to New York City.

And if those same prison inmates were instead counted in the communities
whence they came, the population of urban districts would swell, setting

in

motion reciprocal ripples that would increase the Democratic electorate in

those same competitive districts. Wagner estimates the net effect of
changing how prisoners are counted could gain urban Democrats two seats in
both the New York House and Senate.

In New York state, just over half the prison population is black. Another
third is Hispanic. Of the 2 million Americans now behind bars in local,
state and federal facilities across the nation, nearly half are black and

16

percent are Hispanic.

Even as Wagner studied the issue in New York, Taren

Stinebrickner-Kauffman,

a Duke University math major, independently researched the same question,
examining data in Florida. She found that most of that state's inmates

were

sent to prison from counties that voted for Vice President Al Gore in 2000
and are serving time in counties that voted for George W. Bush.

Stinebrickner-Kauffman found that Gulf County, population 13,332 and solid
Bush country, had sent only 81 home folks to prison, but had prisons

housing

2,574 inmates. The entire 7th state representative district, of which Gulf
County is a part, has nine prisons or work camps and 8,443 inmates better
than 5 percent of its total population.

"We worked hard to get these facilities here in our district," said Bev
Kilmer, the Republican who represents the county in the Florida House. "I
represent a very rural part of Florida and the economy is very slow here.

A

lot of businesses don't want to move their operations to this part of
Florida."

Kilmer thinks it's fair to count the prisoners as population. Her district
already stretches across four complete counties and parts of four more,

and

without the inmates, she said, it would grow even more ungainly.

But she is also sympathetic with the folks in Gulf County who decided that
counting the inmates would skew representation there in undemocratic ways,
and she may file legislation to let counties disregard prison populations

in

their own redistricting.

Not everyone in Gulf County was happy with the decision to ignore the

prison

population. Commissioner Billy E. Traylor, whose district includes the
prison, wanted inmates counted. He said the opposition was led by
Commissioner Peters, the only black on the five-member commission. Traylor
said Peters didn't want the prison numbers to swell Traylor's district to
the point where some white voters would spill over into his own.

Peters called that dead wrong, saying Traylor simply preferred keeping a
prison constituency to which he didn't have to answer.

In Evangeline Parish, La., attorney I. Jackson Burson went to court to

block

counting the prison population in drawing the school board district for

the

little town of Basile, where he went to high school. If prisoners were
counted, many parents who send their children to schools there would have
been pushed out of that district.

"We felt like it didn't make common horse sense," said Burson, citing a

1966

Supreme Court decision and a 2000 federal Fifth Circuit Court of Appeals
ruling.

School board members agreed, using a state law allowing a "special census"
for redistricting which they interpreted to include the regular census

minus

inmates.

Nearby Iberville Parish did the same. Had it not, said Baton Rouge-based
redistricting consultant William Boone, it would have ended up with a

school

board district with only two eligible voters, both Asian.

In eastern Colorado's Crowley County, commissioners are elected by the
countywide electorate but must run from and live in a particular district.
Counting inmates there, according to commissioner T.E. "Tobe" Allumbaugh,
would have created a "prison" district without possibility of
representation.

"It's a little bit of a joke," Allumbaugh said. "(The inmates) can't vote.
If they complain forever there's a good chance I will never hear about it.
There is a reason why they are in there, a reason why they don't vote, a
reason why they don't pay taxes."

Volker in New York and Kilmer in Florida say they do get letters from
inmates with a variety of complaints, but that their real attention is
directed toward corrections workers, with whom both have forged strong
relationships.

Wagner contends that just as important as the shift of power out of New
York's urban districts is the shift upstate toward policies that

perpetuate

prisons and large inmate populations.

Volker's district extending 75 miles from the Finger Lakes to Lake Erie is
95 percent white. More than half the prison population is black and nearly
80 percent of the district's black population is inmates.

Volker believes it is fair to count the inmates as population because the
prisons are where they are, and because, he believes, the 2000 census so
terribly undercounted the population upstate. He is sure that his home
county, Wyoming, gained more than 917 people in the 1990s, though he
acknowledges it remains a part of New York with "more cows than people"

and

that between the cows and the inmates, he would sooner trust his electoral
fate to the cows.

"I'd take my chances with them," Volker said. "They would be more likely

to

vote for me."

____________________________
James A. Gardner
State University of New York
University at Buffalo School of Law
Room 514, O'Brian Hall
Buffalo, NY 14260-1100
voice: 716-645-3607
fax: 716-645-2064
e-mail: jgard@buffalo.edu