With allies we sent a letter to the Legislative Reapportionment Commission proposing a remedy to unjust and illegal prison-based gerrymandering.
Congratulations on your role in the newly constituted Pennsylvania Legislative Reapportionment Commission (LRC). As organizations deeply committed to a fair redistricting process, we are writing to call your attention to the issue of prison-based gerrymandering and to ask that the LRC agree to address this issue as new Pennsylvania house and senate maps are drawn.
Prison-based gerrymandering distorts the equal representation goal of legislative redistricting. We believe this practice is contrary to Pennsylvania law, and we believe that the LRC has the authority to fix this problem.
The Census Bureau has historically counted incarcerated individuals at the site of their incarceration rather than in their home communities. When this census data is used directly in redrawing legislative district boundaries, the principle of equal representation is distorted. Voters in districts containing large prison populations gain enhanced electoral clout, while voters in districts that are home to large numbers of incarcerated individuals have reduced electoral clout. Furthermore, incarcerated individuals are deprived of any meaningful representation, while legislators in the home districts of such individuals are overburdened. The home-district legislators have to serve their full complement of constituents plus residents of their districts who are incarcerated and their families, a group that can require substantial support.
A particularly troubling aspect of prison-based gerrymandering is that the impact is racially skewed. Pennsylvanians of color, the vast majority of whom have no criminal background, are particularly likely to live in districts that lose significant representation, while the districts that benefit are typically majority-white. Under the current maps, over 264,000 Pennsylvanians live in state house districts that would be constitutionally too overpopulated if not for prison gerrymandering. More than 180,000 of these Pennsylvanians are people of color and, more specifically, well over 100,000 are Black.
This practice of counting individuals in places where they are incarcerated is contrary to Pennsylvania law [Title 25, § 1302 (a) (3)], which states clearly:
“no individual who is confined in a penal institution shall be deemed a resident of the election district where the institution is located. The individual shall be deemed to reside where the individual was last registered before being confined in the penal institution, or, if there was no registration prior to confinement, the individual shall be deemed to reside at the last known address before confinement.”
Those incarcerated individuals who can vote cannot use a penal institution or a halfway house as a residence address when registering to vote. Ten states have passed legislation requiring map-makers to adjust census data to reflect the home addresses of incarcerated individuals. Yet prison gerrymandering can and, if necessary, should be corrected without legislative action. To quote the Prison Gerrymandering Project Of the Prison Policy Initiative:
“While states must redistrict on the basis of actual population, the U.S. Constitution does not require states to use the federal census for its own redistricting. In 1971, the City of Philadelphia and Pittsburgh Congressman James G. Fulton, fearing a loss of representation, sued the Census Bureau for counting military personnel, students and prisoners at their temporary addresses instead of their home addresses.
“The U.S. Court of Appeals for the Third Circuit refused to invalidate the just-completed Census, and instead directed the plaintiffs to seek relief from the state legislature:
‘Although a state is entitled to the number of representatives in the House of Representatives as determined by the federal census, it is not required to use these census figures as a basis for apportioning its own legislature. Therefore, appellants’ contention that they will suffer injury because of Pennsylvania’s reliance on the federal census for the apportionment of its legislative bodies is properly directed at the appropriate state law….[Borough of Bethel Park v. Stans, 449 F. 2d 575, 583 (C.A. 3, 1971)]’”
We believe the data is available to make the necessary adjustments to count incarcerated individuals in their home communities. We ask that you commit to using that data and to ensuring that districts reflect communities fairly rather than give out-size influence to districts containing prisons.
We would welcome a conversation with you, your policy, legal, or mapping staff, or anyone involved who would like to explore this issue further.
Thank you for your work on behalf of the people of Pennsylvania.
Carol Kuniholm, Chair, Fair Districts PA
Terrie Griffin, President, League of Women Voters of Pennsylvania
Robert Saleem Holbrook, Executive Director, Abolitionist Law Center
Jenna Henry, Tonya Bah, Free the Ballot
Rev. Sandra L. Strauss, Director, Pennsylvania Council of Churches Advocacy
Tim Stevens, CEO and Chairman, Black Political Empowerment Project
Forum on Prison Gerrymandering