"WINK-WINK-WINK Silver-Cuomo-Skelos" -Bill Samuels on March 15, 2012 after Redistricting Deal
“There are many ways to hijack political power. One of them is to draw state or city legislative districts around large prisons — and pretend that the inmates are legitimate constituents.”—Brent Staples, New York Times Editorial Board
Article III, Section 4 of the State Constitution provides that the federal census be used for State Senate and Assembly redistricting. This has meant that persons in prison, who may not vote, were counted where they were incarcerated. Since most state prisons are in upstate rural areas, and these areas have traditionally been represented by Republicans, this practice advantaged upstate and Republicans in redistricting. In 2010, a Democrat controlled state legislature provided - as part of the budget - that prisoners, most of whom are from New York City or other urban places in New York State, be counted at their home addresses for determining populations of Senate and Assembly districts.
Liitle v. LATFOR was a lawsuit brought by several Senate Republicans to challenge the New York Law passed in 2010 to count incarcerated persons in their home districts for redistricting and reapportionment on Federal and State Constitutional grounds. They argue that because the federal census counts prisoners where they are incarcerated, counting them at their home residence violates the state constitution. They also argued that including this policy in the budget is unconstitutional because it has no fiscal impact. State Supreme Court Justice Eugene Devine in Albany County upheld the law in a decision announced on December 2, 2011. The decision was not appealed.
In the 2000 redistricting, 43,740 prisoners were counted for redistricting the New York Senate where they are incarcerated U=upstate instead of in New York City where they lived.
The effect of this is that the upstate, and mostly rural, districts population and demographic statistics were distorted by this prisoner population. The lower the population of the area where prisons are located, the more exaggerated these distortions become. For instance, in 173 counties nationwide more than ½ of the African-American population counted in the census are prisoners. The distortions in the demographic and population data lead to an unequal apportionment that runs contrary to the very purpose of redistricting.
The New York Times noted in an opinion editorial entitled "Gerrymandering, Pure and Corrupt" that:
"SENATE DISTRICT 45 Each district needs about the same population, give or take 10 percent (about 300,000 for a Senate district and 124,000 for an Assembly district). But partisan mapmakers have always found ways to fiddle with the numbers. The upstate district for Senator Elizabeth Little, a Republican, is a perfect example. Mrs. Little’s district has 299,600 people, but about 13,000 of those are prisoners from 12 prisons in her district. These prisoners do not vote, and they should be counted where they live, which is probably not in her district. But the prisoner scam is one way to keep upstate districts intact and Republican, as the area steadily loses population."
An overlooked aspect of this matter is that even if they are counted as residing at their last home address before incarceration for the purposes of districting, most prisoners will still not vote. In New York State, anyone convicted of a felony and sentenced to time behind bars loses their right to vote while they're incarcerated, and for the duration of their parole. One effect of the change would thus be to depress already low turnout statistics in these districts even further.
A constitutional amendment on redistricting could determine an equitable way to distribute the populations of incarcerated people.
The issue of prisoners and redistricting is a contentious one. Prisoners are counted by the census in the prison, and historically, this data has been used, unaltered, for the purposes of redistricting. In 2010, a bill was passed that redistributes the prisoner population to their place of origin, rather than counting them in their place of incarceration. A constitutional amendment on redistricting could specify an equitable way distribute the populations of incarcerated people.
The Governor's proposed constitutional amendment to create a redistricting commission is silent on the prisoner reallocation issue, possibly imperiling future use of the 2010 law if voters approve the 2014 commission amendment.
[Definition of inhabitants]
§5-a. For the purpose of apportioning senate and assembly districts pursuant to the foregoing provisions of this article, the term "inhabitants, excluding aliens" shall mean the whole number of persons. (New. Added by vote of the people November 4, 1969.)
Although prisoner's residency is in their home in 48 out of 50 states according to the state's constitution or law, when it comes to redistricting, 43 states count prisoner's residency as in the prison. Currently, only 7 states count prison populations at their home addresses for redistricting, with only 7 other states that have pending legislation to end it.
Pass legislation ending prisoner gerrymandering: IL, MA, MN, OR, PA, RI, WI
7 state constitutions define residency for prisoners at home not prison.: AR, CO, MO, NV, NY, OR, WA
41 states' laws define residency for prisoners at home not prison: AK, AL, AZ, CA, CT, DE, FL, GA, HI, IA, ID, IL, IN, KS, KY, LA, MA, MD, ME, MI, MN, MS, MT, NC, ND, NE, NH, NM, OH, PA, RI, SC, SD, TN, TX, UT, VA, VT, WI, WV, WY
40 states count prisoner's residency as in the prison only for redistricting: AL, AR, AZ, CT, GA, HI, IA, ID, IL, IN, KS, KY, LA, MA, ME, MI, MN, MO, MS, MT, NC, NE, NH, NJ, NM, NV, OH, OK, OR, PA, RI, SC, SD, TN, TX, UT, VA, VT, WA, WI
7 states do not count prisoner's residency as in the prison for redistricting: CA, CO, CT, DE, FL, MD, NY