Opinion Editorial on Redistricting Prisoners
Electoral fairness held prisonerEkow Yankah
Imagine that you have been moved 300 miles from home, separated from anything familiar, isolated from your home and community. You are obligated to stay for a number of years. You no longer vote but, more peculiarly, your representation in government has been, in a sense, given to someone else; political officials who in many cases have interests directly opposed to yours.
Your move now enables political officials, ones you never had the opportunity to elect, to petition the government for policies and programs that you would never support. In some cases they would not have their official seat and job at all were it not for their counting your vote with theirs.
This is the situation that existed until last year when New York passed a law preventing sparsely populated rural regions from counting prisoners as their "residents" to inflate their population and political clout.
The prisons are located mainly in rural New York districts, even though their inhabitants are typically from New York City or upstate urban areas like Buffalo, Albany or Syracuse. The vast majority of these prisoners lives in cities and returns to these cities, and most importantly, for many, their addresses are in those cities.
Last month, nine state senators filed a lawsuit seeking to restore the prior system of prison-based gerrymandering. Counting prisoners as residents gives the districts of these nine senators access to political goodies they have no other ways of getting. Indeed, it is no coincidence that many of these plaintiffs' districts coincide with the seven in New York that would not meet minimum population requirements except for their strategic labeling of prisoners as residents.
The U.S. Department of Justice on Monday approved the law counting prisoners from their hometowns, as the final step before implementation as required by the federal Voting Rights Act.
The senators' lawsuit challenges the law as giving unequal treatment to "different classes" of voters. Further, they argue that because the state Constitution allegedly contains no specific provisions for how to count prisoners in the census, a constitutional amendment was required to enact the law.
They can support their arguments only by distorting the state constitution. First, the constitution, in the very section that they cite in their complaint (Article III, section 4), allows the state to use other information where the federal census data is not precise or adequate for apportioning electoral districts.
Second and most directly, both the constitution and state election law explicitly guarantee that, for voting purposes, no one shall be deemed to have lost his or her residence while confined in prison. Thus, the premise of their lawsuit flatly contravenes the state constitution.
The constitution has always been clear that prisoners remain residents of their pre-incarceration addresses for voting purposes, and for the first time our state redistricting procedures will be in compliance. Indeed, nowhere in the lawsuit do the senators mention that before the enactment of the law that they are challenging, the majority of New York's counties that have large prisons refused to use the prison populations in drawing their country districts.
The case of the city of Rome in Oneida County is an illuminating example of uneven and inflated legislative representation caused by prison-based gerrymandering. Rome counts prisoners in drawing its City Council districts, resulting in one council district that has as many prisoners as non-prisoners, giving those constituents twice the political influence compared with the constituents of the other council districts. The prisoners are not from the region, do not pay taxes or vote.
At bottom, the senators' lawsuit offends not only our state constitution but our core notion of one person, one vote. The courts and New York citizens must fight to ensure that cynical political gerrymandering does not undermine our belief in electoral fairness.
Ekow N. Yankah is an assistant law professor at the Benjamin N. Cardozo Law School of Yeshiva University in New York City. Leonard Kohen is a New York City attorney who has dealt extensively with election law and voting rights issues.