Podcasts – Prisoners of the Census

Host: Peter Wagner, Executive Director, Prison Policy Initiative

Guest:

January, 2011

Welcome to issues in prison-based gerrymandering, a podcast about keeping the Census Bureau’s prison count from harming our democracy. The Census Bureau counts people in prison as if they were actual residents of their prison cells, even though most state laws say that people in prison are residents of their homes. When prison counts are used to pad legislative districts, the weight of a vote starts to differ. If you live next to a large prison, your vote is worth more than one cast in a district without prisons. Prison-based gerrymandering distorts state legislative districts and has been known to create county legislative districts that contain more prisoners than voters. On each episode, we’ll talk with different voting rights experts about ways in which state and local governments can change the census and avoid prison-based gerrymandering.

Our guest today is Janice Thompson, the Executive Director of Common Cause Oregon, here to talk with us about her work on prison-based gerrymandering in Oregon and what she calls the rural fairness differential. Janice, thanks for being here today.

This actually is pretty dramatic in the city of Pendleton because while they haven’t updated their legislative district boundaries in a while, going forward in this current round of redistricting if they use the prison population to draw the city council wards they are going to draw one city council ward that is about 28 percent prisoners. So every three people who live next to the prison are going to have as much say as four people who live in other parts of the city on city affairs. That is a pretty serious impact.

In Oregon it comes up because we are the tenth largest state in the country in terms of square miles. We have some districts in the Eastern part of Oregon that are about as big as some entire states on the east coast. So not only do legislators in those rural areas have to drive a long way within their districts but they also have a long way to travel to get to the state capitol.

My take on this and how I have testified when this issue has come up in the Oregon legislature is that what we need is a rural fairness differential when providing dollars for legislative office-holder expenses. Even before you add in how the square miles of a district may change if prison gerrymandering is addressed, it does just plain cost more to represent a big district far from the capital compared to small urban districts. That needs to be addressed in the resources given to those office holders in those larger districts. And I call that the rural fairness differential. The need for that is just heightened if indeed the geography of the districts are even larger because of some tweaking of how prisoners are counted in redistricting.

Right. And it is actually a valid problem. It is a matter of an existing problem that gets highlighted when people begin to talk about how prisoners in a potentially already large rural district could increase the geographic size of that. It is just that there is a better solution that doesn’t involve instituting unfairness. The Supreme Court has been clear that districts need to have an equal number of residents so that a vote cast in one part of the state is the same as a vote cast in another area. So this is a basic fairness issue and it means that prisoners should be counted where they lived before incarceration. It would be good, especially since that idea triggers heightened concern about the costs of these big districts. That idea should be accompanied by providing elected officials in those large rural districts additional resources as a rural fairness differential in the legislative budgeting process to deal with their increased costs of representing those big districts.

Host: Peter Wagner, Executive Director, Prison Policy Initiative

Guest:

Recorded: June, 2010, Aired: November 2010

Welcome to issues in prison-based gerrymandering, a podcast about keeping the Census Bureau’s prison count from harming our democracy. The Census Bureau counts people in prison as if they were actual residents of their prison cells, even though most state laws say that people in prison are residents of their homes. When prison counts are used to pad legislative districts, the weight of a vote starts to differ. If you live next to a large prison, your vote is worth more than one cast in a district without prisons. Prison-based gerrymandering distorts state legislative districts and has been known to create county legislative districts that contain more prisoners than voters. On each episode, we’ll talk with different voting rights experts about ways in which state and local governments can change the census and avoid prison-based gerrymandering.

Thank you for joining us, Dale. I was hoping you could introduce yourself and tell us about what you do at the NAACP Legal Defense Fund and why the LDF is interested in addressing prison-based gerrymandering.

I want to make that very, very clear because sometimes when the Legal Defense Fund talks about this issue, people think, once we walk into the room, oh this is a minority issue. This is an issue that just deals with communities of color. But I really want to make clear that this is an issue that affects everyone. It affects people regardless of race, and it affects people regardless of geographic region.

Now, all that being said, prison-based gerrymandering does have particularly harsh effects on communities of color, and I think the reason for that is that incarcerated populations are disproportionately people of color. So, take New York State, for an example. In New York State, 30% of the overall population is African American and Latino. But 77%, so, more than two-and-a-half times that rate, of the prison population is African American and Latino, and what prison-based gerrymandering does in New York State is, because the incarcerated population is so overwhelmingly people of color, it basically has the effect of unfairly transferring political power from communities of color to other regions of the state.

And I understand that the LDF recently has a new publication about this.

That’s right. We published a report that came out on June 1st of this year, entitled, “Captive Constituents: Prison-Based Gerrymandering and the Distortion of Our Democracy.” The report basically lays out some of the facts that I’ve been describing. Really, to understand the importance of this issue and what a significant effect it has on our democracy is you have to contextualize it within the phenomenon of mass incarceration that we’ve seen over the past 40 or 50 years in this country.

So, in the 1970s, again, I’ll use New York State as an example, there were about 10,000 incarcerated people in New York State. By the year 2000, that number had reached over 70,000. It’s a little lower today, but it’s still significantly larger than it was 40 years ago. That mirrors trends nationally. Nationally, in the 1970s, we had a few hundred thousand people incarcerated. Now we have over two million people incarcerated. We have 5% of the world’s population but we have 25% of the world’s prisoners.

If you took the incarcerated population in the country and put them in one place, their population would be equal to our three smallest states combined, and if you use 2000 figures, they would have five votes in the electoral college. So I think it’s plain to see that where these populations are counted has tremendous, tremendous effects on the shape of our democracy and the distribution of political power and as I mentioned, because the incarcerated population is so disproportionately comprised of people of color, prison-based gerrymandering, by counting people in districts that are far from their homes, typically, really dilutes the voting strength of communities of color.

From our perspective, we have a problem of not only of the one person, one vote principle under the United States Constitution, but we also potentially have a problem with Section 2 of the Voting Rights Act, which provides that minority voters are to have an equal opportunity to elect candidates of their choice. Well, if so many residents of minority communities and so many people of color are being counted to inflate the political power of other districts, I think it’s hard to say that there’s not some dilution of the voting power of communities of color in a way that really runs counter to the spirit and purpose of the Voting Rights Act.

So we want to see an end to prison-based gerrymandering, but what is it that we want people to do to make that happen? What are your thoughts and the LDF’s thoughts about what we should be doing?

We get questions like, why are we counting incarcerated people at all when we draw election districts. Incarcerated people can’t vote. That’s generally true, but it’s not universally true. In Maine and Vermont, all incarcerated people can vote. And even in many other states, people who are incarcerated stay at a jail instead of at a state prison often have the opportunity to vote as well. But really, that’s sort of beside the point.

Whether or not someone can vote is irrelevant to whether or not they’re counted. In the redistricting process, there are all kinds of populations that can’t or don’t vote. Minors, for instance, count. Non-citizens, so people who are residents of the country legally but aren’t citizens yet. Even people who are undocumented count in the redistricting process. The United States Constitution provides that the census is supposed to count all inhabitants of the United States and political power is apportioned on the basis of the number of inhabitants. Whether or not people can vote doesn’t matter, whether or not they’re counted.

But really the question is, where should people be counted? And most states, just about every state has either a constitutional provision or a statute that provides that a person doesn’t lose their legal residence by virtue of being incarcerated. So if you’re an incarcerated person, you remain a legal resident of the place that you lived prior to your arrest. So it only makes sense, if that’s where you’re a legal resident, for you to be counted there. And that rule sort of comports with our basic common sense understanding of where people have ties, where people can consider themselves constituents.

An incarcerated person isn’t held at a particular county or facility or district by choice. They can be moved at any time by the Department of Corrections. They obviously have no opportunity to integrate themselves into the surrounding community or participate in civic life there or use services there. So, it doesn’t really make sense to think of them as constituents there. It makes more sense to think of them as constituents at their home addresses, where they do have ties.

Now that raises another question that I think that we get sometimes, which is, but don’t incarcerated people have an effect on the communities where they’re held? Don’t the communities where the prisons and jails are located need resources to account for the fact that they have large numbers of incarcerated people living there? That’s certainly true, but what we’re asking is not for there to be a change to any of that distribution of resources. Communities that host prisons and jails need resources to accommodate those prisons and jails and we understand that and are supportive of that. The only question that we have is why should those communities get a boost in terms of their political representation, by virtue of housing the prison or jail. Our view is that obviously, they shouldn’t.

And so, where does the problem originate? Is this a problem that starts with the Census Bureau with the counting? Is this a problem that starts with the redistricting committees and what’s our best entry point to fix this?

So every body that is in charge of redistricting, whether it’s a state legislature or a state’s redistricting commission or even at the local level, a county government, say, has the opportunity to not count incarcerated people as residents of the places where they’re held.

The one thing the Census Bureau did do is it agreed to release data on prison populations in time for redistricting authorities to take that information into account when they draw election districts starting next year. So there’s really an opportunity here, a unique opportunity, I think, for districts to get this right, to not engage in prison-based gerrymandering and to really decide whether or not they’re committed the principle of one person, one vote and that all people should have an equal say in the political process.

So what specifically, then, besides your educational publication that you just did is the Legal Defense Fund doing on this issue, and how can people contact you?

Thank you very much, Dale. This has been incredibly informative. Would you be interested in coming back to talk in more detail about what states and redistricting committees can do?

Sure, I’d be happy to.

All right, looking forward to it. Thanks, Dale.

Great, thank you, Peter

Dale’s optimism in this interview was well founded. Shortly after this interview was recorded in early June, the legislation in Delaware and New York to end prison-based gerrymandering became law. These two states have joined Maryland in ending prison-based gerrymandering within their borders. In the months ahead, we’ll be helping other states follow suit.

Host: Peter Wagner, Executive Director, Prison Policy Initiative

Guest:

Welcome to Issues in Prison-Based Gerrymandering, a podcast about keeping the Census Bureau’s prison count from harming our democracy. The Census Bureau counts people in prison as if they were actual residents of their prison cells, even though most state laws say that people in prison are residents of their homes. When prison counts are used to pad legislative districts, the weight of a vote starts to differ. If you live next to a large prison, your vote is worth more than one cast in a district without prisons. Prison-based gerrymandering distorts state legislative districts and has been known to create county legislative districts that contain more prisoners than voters. On each episode, we’ll talk with different voting rights experts about ways in which state and local governments can change the census and avoid prison-based gerrymandering.

Our guest today is Bruce Riley, an organizer at DARE in Rhode Island, Direct Action for Rights and Equality. Bruce has been spearheading the campaign to end prison-based gerrymandering in Rhode Island. Welcome, Bruce.

Hey, how are you?

Very good, how are you?

I’m good. Glad to be here, trying to help other folks out in their battles and sharing whatever it is that I can share because we all have to work together. Otherwise we’re all left in our own little silos, and it’s not very efficient.

So Rhode Island is a state that is looking very seriously at fixing prison-based gerrymandering. It’s a state that, until recently, this was not on the radar at all, so I was hoping you could tell us about that and what you’ve learned. But first, I was hoping, could you introduce yourself and tell us a little bit about you, about DARE, and about your interest in this issue?

Sure. I am fortunate enough to work for a non-profit I used to volunteer for and be on the board. I started that work while I was in prison and this is the local group that works with prisoners of Rhode Island on issues systemically. We don’t have any staff lawyers, we don’t work on individual cases, although that gets looped in to working on the system issues. I got out five years ago, was a very active member on the outside, learned so much, brought some of my artistic skills into the organizing and the promo for things, learned a lot about computers as I went, started learning how to make my reports look fancy, and here we are. I happen to have seen at Brown University maybe five years ago one Peter Wagner do a presentation on the prison-based gerrymandering in New York State, and it always lingered in the back of my head. As we got closer to this census, I thought, hey, what’s the Rhode Island situation? How do we count our prisoners? And nobody knew the answer to it. And I was just like, somebody’s got to know. And so I ended up doing a little of my own research and found out that sure, it’s done just the way everybody else does it. I was able to get in touch with yourself and local people that would be interested. I managed to crunch the numbers on our own prison here. Particularly because I was familiar with each building, what the population was, where it was in the districts. I did the math and then I presented it publicly onto a blog that I contribute to, and then the ball started rolling. Here we are.

So for people who have been following prison-based gerrymandering in other states, Rhode Island’s a little bit different. So where are all the prisons in Rhode Island?

We have one campus, which is different. The ACI is based in Cranston, Rhode Island, which is the town just off of Providence. It’s a very suburban town. Strip malls and housing developments, it has some wealth. It’s interesting how they have a lot of different sides to Cranston. It’s relatively vast, geographically. There’s two house districts, out of about five districts, I believe, that cover Cranston, some that lead into other towns. But two of them encompass the entire prison. Right down the middle of it–not necessarily numbers-wise, but more like geographically–is the border between these two districts, and they’re both within one senate district. Interestingly, one of the prison districts, House District 16, I believe, is the majority leader Nick Mattiello. He’s a Democrat. He’s considered a conservative guy. Our sponsors saw him as a straight shooter, one of those noble adversaries. So, we went to him with a few bills that were introduced at the beginning of the legislative session and had a meeting, Joe Almeida, myself, and Nick Mattiello. When this issue came up, laid it out for him, and he got it really quickly. He just was like, “That’s not right, sure. Go for it.” I just thought, wow, that was easy.

So the majority leader has a large prison in his district, and when he thought about the issue, he thought that changing this made sense.

Yeah, he ended up having a quote in the paper. At one point, a reporter hit him up, and he said, probably a little tongue-in-cheek, “Yeah, I look forward to having more people in my district who can actually vote for me.” And in a way, humorously enough, he just hit the nail right on the head. It’s like, how many people in your district are really eligible to vote? Our districts are about 13,000 people, and he had about 1,500 in his district who aren’t even eligible. Because our districts are so small — unlike Chicago which has wards of 80,000 people — that 1,000 or 2,000 makes a serious dent in the numbers. And he had the smaller half of the prison. Peter Palumbo has the larger half.

It’s worth noting that Peter Palumbo has really made his name on being tough on crime. It has made national news that he wanted to introduce the infamous Arizona SB 1040, I believe is the number, to deputize all local law enforcement into federal agents. There’s a lot of commotion here between our group and allies, even, and people like the Tea Party who wanted to see those people rounded up. So this is Peter Palumbo who clearly is not representing all his residents because many of those residents are directly opposed to probably about 50% of those issues in votes. It’s an interesting contrast.

I know that one thing you wanted to share with people in other states was some of your observations about what’s worked for messaging and what hasn’t worked, like how to explain this issue to people in terms of who wins and who loses and what’s at stake?

Right so, we had a hearing in the house judiciary pretty quickly. There were two key questions that came up from the legislators. The first one was more of a rhetorical question by a conservative rural politician. He’s a lawyer, so he has a pretty analytical mind, and I respect him. He says, “So, basically, everyone in the prison district,” you know, these two districts, “has more political power than everyone in all the other districts because there’s less people making the votes. So why wouldn’t every district, other than these two, support this bill?” We have 75 house districts. Representative Joe Almeida responded, “Hey, look brother, I won’t tell you how to vote, but I look out for my district. I suggest you look out for yours.” He kind of hit the nail on the head of just getting really quickly that obviously if I have ten people over here that have to come together for decisions. You have five people over there who have to come together for decisions. The five people have more power. And if you have to divide up resources, in any sense, even if it’s just votes or issues, ten people want to get their issues heard, five people want to get their issues heard. The five have more juice. They have more leeway. The ten have to clamber amongst themselves. They make different deals amongst themselves to get their five issues out there, whereas the other five get all their issues.

So the other question that came up was from Representative Amy Rice, also a lawyer, who was like, “Well, I don’t know if we have the power to do this. This is a federal question, right?” I said, “Well, interestingly enough, that doesn’t have to be answered. It’s here on your fact sheet provided by Prisons Policy and by Demos that I have for you.” They all look down. The questions come up around military installations and college campuses because basically you could have these whole districts that are built around transient populations. What do you do with that? A couple nice cases I outlined for them and they realized that the federal number’s our starting point, which you can then modify as the state deems fit. I gave them the example of Gardner, Massachusetts, which they really related to because if your whole town is a prison and you have an east side and a west side and the east side is a prison and the west side is all the other people, it makes it more obvious. They themselves figured out that they had to do a redistricting.

So you’re saying Gardner of Massachusetts decided it was not going to include the prison populations when it drew its districts?

Right. Otherwise, they would have the six people who live next to the prison having one councilor and then the 6,000 people who live across the street having another councilor. You know, just to make it simple. We went at it a creative way. One of our members realized that, “Hey, these guys are residents. My husband, who is currently incarcerated, should be able to send his daughter to school in Cranston, right? He’s a resident. They want him to be a resident.” So we went and we attempted to register little Jolina at her school. Ironically enough, Jolina had been. She was originally from Providence, moved into Cranston and was currently being kicked out of Cranston because her mom moved back. It wasn’t like she was coming out of nowhere. She still is currently Cranston schools. When they kick you out, they kick you out the next semester. So we went in, and they didn’t really know what to do. They felt it was where the kid lays her head down at night. Its not different, let’s say you have divorced parents on the outside. They had to figure out a way to decide what district they can go to. It’s where the child spends most of the time. We got denied, but we raised an important issue. We got the mayor to suddenly realize, whoa, they’re not residents in the classic sense, although a few weeks earlier, he was saying they were residents of Cranston. It was a good way to raise awareness. It’s reasonable that they’re not going to let all the kids go to school in Cranston. Who would want a flood of 3,000 kids suddenly going into your school system? It wouldn’t be worth it, for whatever they’re gaining. So the appeal’s still pending, but it was more intended to raise awareness. I thought it was a great success.

I thought that was very effective.

Yeah, it made a lot of people wonder what was going to happen. It made people wonder (a) why you consider prisoners residents and you say, well, because this whole voting districting situation is calling them that, although at the same time, another effective argument, going back to those lawyers on the judiciary committee, saying, well, we’re currently in violation of state law, which says, someone does not lose their residency based on things like military service and going to college, including prison. You go to prison, and you don’t lose your residency. In fact, if you’re not convicted yet, if you’re awaiting trial, you’re still eligible to vote. I don’t know how many people vote by absentee ballot from jail. It may not be the most important thing in your mind at the time, but those people would not be allowed to vote in Cranston, unless they’re from Cranston. They would be allowed to vote by absentee ballot based on their registered address, which could be based on their registered address, Providence, East Providence, whatever. Just pointing that one out, I think definitely wow we have to reconcile these laws about where these people are considered residents and voters.

I’ve noticed you’ve definitely sparked a really interesting and in-depth and heartfelt debate about what residence means and how districts should be drawn and what fairness requires in Rhode Island. Is there anything else you wanted to share with folks about what you’ve learned doing this important work?

Well, I learned that it’s understandable to not really know what the redistricting looks like. People start with a one person, one vote concept and get that and want that. Then, there’s a challenge of, well, people also want stability. They also like their districts where they are. Clearly, any kind of redistricting which happens every ten years whether you like it or not, based on population changes. Yeah, you know your borders are going to change a little bit. Maybe some of the rookie, or less experienced, legislators don’t really know what happens anyway. I don’t really think about it so much. You’re going to lose a few streets or gain a few neighborhoods, depending on what’s going on. One interesting thing that I noticed in doing number-crunching is Providence is losing residents over the last ten years, in whole numbers, never mind the lack of growth, while other areas, suburban areas and the southern parts of the state, are gaining residents. They’re building housing, while our housing is getting boarded up in the city. If you don’t redistrict and count people back in the cities, you’re going to have vast changes. This is one of the few stop caps towards the status quo. If you don’t make a change, you’re going to have city representatives, who, to recoup their lost folks over the last ten years–a lot of economic factors go into that, even less immigration going into that–you’re going to have to go to more suburban districts to get their edges, to regain their borders. I don’t know that people really want that because they sort of like the idea of natural boundaries, whether they be economic or geographic. They’re going to have to start going over those boundaries. This is one way to keep the conservative nature of “I like who I represent, well, like it or not, comfortable with who I represent.” That’s something that I don’t know that folks really understand. It’s good to have a positive relationship with your media and your legislators because it can be work really getting them to pay attention and understand a complex new issue. Sometimes these things could take years. I feel unfortunate that we didn’t start this a few years ago, just so that I could get more people as champions quicker, so we could have, say, twenty people already in the bag going into this year. But those that get it are supportive. Then you have the rather typical log-jam of legislation no matter what it is, but squished in with the idea of, “This is the year. If we don’t do it, we have ten more years for it. We have ten more years of injustice.” There’s a lot of other budget pressures going on this year that I’m sure is nationwide. Rhode Island’s having a really tough time, closing these gaps and that gap. It’s hard to pass the winning issue. And it’s an election year, too. You have politicians who have to run for their seats or they’re running for other seats. Maybe they’re trying to run for a whole other level of government. It’s a really crazy hectic year. I’m personally involved in close to twenty pieces of legislation, either for or against, and this thing is one of them. It’s been a bit of a challenge juggling everything. We’ve had great support from the ACLU and Common Cause, a lot of good technical support from Prison Policy and Demos. That’s been really helpful and getting the national NAACP in with the Legal Defense Fund. It’s been really positive to draw so many people together with the idea of one person, one vote and fixing yet another historical oversight. I don’t think it was malicious. It was just an oversight. It’s been a good experience overall. I’ve learned a lot about democracy.

[Shortly after this interview was recorded in early June, the Rhode Island Legislative session ended early without taking action on the prison-based gerrymandering bill. Activists are preparing to bring the bill back in the next legislative session, and the ACLU of Rhode Island is looking in to litigation to end prison-based gerrymandering and to protect the constitutional principle of one person one vote.
–Peter Wagner, August 2010]

Host: Peter Wagner, Executive Director, Prison Policy Initiative

Guests:

Welcome to Issues in Prison-Based Gerrymandering, a podcast about keeping the Census Bureau’s prison count from harming our democracy. The Census Bureau counts people in prison as if they were actual residents of their prison cells, even though most state laws say that people in prison are residents of their homes. When prison counts are used to pad legislative districts, the weight of a vote starts to differ. If you live next to a large prison, your vote is worth more than one cast in a district without prisons. Prison-based gerrymandering distorts state legislative districts and has been known to create county legislative districts that contain more prisoners than voters.

On each episode, we’ll talk with different voting rights experts about ways in which state and local governments can change the census and avoid prison-based gerrymandering.

Thank you.

Thanks Peter, glad to be here.

Can you tell us about the Minnesota Second Chance Coalition?

I would just add to that that our current membership is over 45 diverse organizations that work on these issues together.

They range from everything from mental health service providers to peer advocacy organizations to corrections service providers and state agencies. Again it’s just in the acknowledgement of the fact that the justice system has unintentionally touched basically every area of this social service and civic engagement world.

So I understand that the Minnesota Second Chance Coalition has taken up prison-based gerrymandering as one of its issues. Can you tell our audience a little bit about why, because for some people who know that Minnesota has a relatively small prison population they might be surprised to hear about your work.

Well, yes, I think that prison-based gerrymandering is relevant to an organization looking for fair and responsible policies and practices because it recognizes that the justice system has expanded and in its expansion there have been many unintended consequences. Prison-based gerrymandering is one amongst many. But it’s also about the fact that the justice system is related to civic participation and civil society, and that, increasingly, the justice system is touching on all aspects on civil society. It’s intruding into areas that I think people didn’t anticipate.

I would just add to that that by bringing attention to the prison gerrymandering issue, we may engage new policy makers, new constituents, new supporters who approach some of these issues from a different avenue and would be interested in this, and by becoming interested in this issue of their democratic participation they may become more supportive on some of our other issues.

Yeah, and along those lines, one of the reasons the coalition has been effective is because we are very strategic about making sure we have statewide support. Too often, issues of crime and justice are framed in urban, in terms of urban populations, and certainly in Minnesota this is not always the case. Minnesota has one of the smallest prison populations, but it has one of the largest populations on probation and parole. About 40% of the people in prison return to the two major metropolitan cities, but that still leaves 60% of people involved in the justice system coming from greater Minnesota. We also think it’s really important to look at those issues in a much broader way.

First the League of Women Voters contacted Mark and said they were interested in this issue. Mark then contacted me and I contacted you because you’re the expert on this subject. And that’s basically how it came to our attention to be on our agenda.

We started on the issue a little bit late in our normal policy development process, so we’d already developed a number of other bills that we were looking at moving through the legislative session this year. By the time we decided to work on the prison gerrymandering, got the work with the League of Women Voters, and got the legislative support, found an author, and got the legislation drafted and introduced we were about a month into the legislative session, maybe a little bit more.

You picked up some unexpected support, I understand.

That’s correct. Well, I think the League of Women Voters showing an interest in this was somewhat unexpected. They had not engaged directly in criminal justice reform policies before. Their interest in this was a little bit surprising to me especially when nobody, you know, our organizations had approached them about it. So that was an initial surprise, at least on my part. One supporter that we found in our House of Representatives, which is typically takes a pretty “tough on crime” stance on these issues, was one of the most well-known “tough on crime” Democrats. I was talking to her about some of the other issues that we’re working on, some of the other bills, and she saw this issue and she just went, “What? This is crazy! How can we be counting people that can’t vote? It just doesn’t make sense.”

Yeah, and I think that our experience was that many people just simply didn’t understand the issue, or weren’t aware of it. I think that we were awfully surprised by the fact that media took a greater interest in this issue than many of the other things that we would have thought might have interested media. Part of this has to do with the fact that we’re in an election year, or a new governor, and we’re also in a close battle to maintain a congressional seat.

The political implications of the census are very much in people’s eyes right now.

Yes, I would say more than I’ve ever seen

Your bill was not successful, is that correct?

It did not pass the legislature this session, correct.

Do you have any kind of lessons from what you learned, either things you did well or things that you’d like to do differently for next time that you’d like to share with an audience of people doing similar work in other states?

Well, I think one main thing that I sort of touched on earlier was getting started early. Like with any legislation, you want to be able to get people used to it, even before the session starts, find your main supporters, help them get the talking points that they need to get the legislation drafted, and get a head start basically. We just weren’t able to do that this session. With this issue, like Sarah was saying, people aren’t familiar with it, you know, they’re surprised. It does take a little bit of education and also a little bit of extra work with messaging, trying to be simple in the messaging, and stick to that, and get a broad base of support.

I think we also need to work on educating legislators, specifically, and that’s really, that’s I would say what we need to do.

I think as far as a good strategy, this kind of happened here, not necessarily a strategy, but having a statewide non-partisan organization like the League of Women Voters working on the issue was helpful.

So what’s next for this issue in Minnesota?

Well, we will be redistricting in Minnesota shortly after the next legislative session starts. There has been some talk, although it’s not confirmed, about some interim committee hearings around redistricting issues. So we may be able to bring this issue up then. Otherwise, we hope to continue working on the issue and get some of the work done before the session starts so that we can get something going right away to have it apply to our next redistricting. So just continuing to do some of the things that we would have liked to have done better this year. Getting — like Sarah said — getting more legislative support, getting broader support, educating people on the issue.

I’ve been really impressed with everything that the Minnesota Second Chance Coalition has accomplished on prison-based gerrymandering and on other issues. Is there anything that we’ve left out of this conversation?

I would just reiterate a lot of what Sarah has said about the importance of working on criminal justice issues from a wide variety of areas where it impacts people, whether it’s housing, employment, mental health issues, substance abuse issues, prison-based gerrymandering, voting. The more that we can draw in a broader group of people, supporters, and educate people on how these issues impact every part of our civic, political, social life, the better.

Well, I will thank you both very much for joining us and sharing your experience with listeners of Issues in Prison-Based Gerrymandering. Thank you, Mark.

You’re welcome. Thank you for all of your support. You were very helpful in working on this issue.

I’m very glad to do it. And thank you Sarah.

And thank you. You’ve clearly done a lot on this issue and I admire your work.

Keep up the great work in Minnesota.

Thanks, Peter. We will.

Thanks.

Host: Peter Wagner, Executive Director, Prison Policy Initiative

Our guest today is Cindy Boersma, Legislative Director of the ACLU of Maryland. Last month, Maryland made history by being the first state to pass a law requiring the state to adjust the U.S. Census and count incarcerated people at home for state and local redistricting purposes. The ACLU of Maryland played a key role in that effort, and Cindy is here to talk with us about how it all came together.

Welcome, Cindy.

Thank you, Peter. It’s great to be with you.

Some of the people who came out to testify and show their support for ending prison-based gerrymandering at a March 4, 2010 hearing at the Maryland House of Delegates. Cindy Boersma is in the center in the green suit.

I’m the Legislative Director for the ACLU of Maryland. I work primarily on state, our state legislative agenda. We do some work with our Washington legislative office on federal issues. But my primary work is in Annapolis on state legislative issues of concern to the ACLU of Maryland. We became involved in this issue because of our historic involvement in voting rights issues throughout Maryland with some significant history on the Eastern Shore of Maryland.

The Eastern Shore has a legacy dating back, of course, to slavery with a significant black population and starkly white government at both the state and local level. In many areas, on the Eastern Shore and in other parts of Maryland, there has been no African American who has ever held elected office or even held a professional position in state or local government. That led to Voting Rights Act litigation by the ACLU in partnership with the NAACP back in the ’80s around the state and also on the Eastern Shore.

In response to that litigation, the court created a majority-minority district in one county’s local election districts in Somerset County and yet the problem of no African Americans holding elected offices or even hired positions–professional positions–in local government persisted.

We, again with the NAACP, documented the persistence of that problem in a report that we issued last summer. One of the sources of the problem, not the only source, but one significant contribution to the problem was that sitting in the middle of this majority-minority district was one of the state’s large prisons, so that 64% of what was the majority-minority in that district were prisoners at the Eastern Correctional Institution. So we had really a majority-minority district in name only.

That’s correct.

We involved the Legislative Black Caucus as soon as the report was issued. The Legislative Black Caucus at the time, of course, had been, has been very invested in the census and making sure that everyone is properly counted in this next census that is already underway. When we brought this issue to their attention, they became very invested in correcting this problem. They worked with the Office of the Attorney General and got an opinion from the Office of the Attorney General that correcting prison-based gerrymandering, especially as it affected Somerset County on the Eastern Shore, was not only consistent with the Voting Rights Act, but it mandated it, at least in spirit, in order to fulfill the principles and goals of the Voting Rights Act in Maryland.

The next step was to work with our legislative staff that’s in charge of redistricting and explaining the issue to them. They also worked with the House and Senate leaders — the Speaker of the House and the President of the Senate–to bring them on board. So they really took this cause on, even before the legislative session started, and had laid the groundwork for the introduction of legislation to correct the problem.

It did, yes. We brought the issue to the leader of the Legislative Black Caucus in the early fall. We worked with the Caucus leaders who took on the bill as the bill sponsors to draft the No Representation Without Population Act. They worked with the Office of the Attorney General to get an Attorney General’s opinion that said not only was this consistent with the Voting Rights Act, but important to fulfilling the goals and the spirit of the Voting Rights Act, particularly as prison-based gerrymandering affected Somerset County and the Voting Right Act history of litigation there. They also worked and we worked with the legislative staff in charge of redistricting to explain the issue of prison-based gerrymandering to them, and they came on board very quickly to work on what it would take to actually implement the bill and make sure the bill was drafted in the most cost-effective, logistically simple way. The Caucus and the ACLU of Maryland also worked with House and Senate leadership and brought them on board. So all the ducks were lined up by the beginning of the legislative session, and that helped ensure fairly smooth sailing for the bill once the session started.

My understanding is that Maryland had two of the most skewed districts, skewed by prison-based gerrymandering districts in the country. Somerset County we’ve already talked about, where 64% of the majority-minority population was prisoners. We also have several large state prisons out in western Maryland, and we had one legislative sub-district there where 18% of the population was prisoners, and so that enhanced the voting power of the voters in that district at the expense of any district in Maryland without prisons. Maryland, like the rest of the country, locates its prisons in sparsely populated rural areas, and that means that voters in those areas have their votes unfairly enhanced while voters in any other area without a prison have their votes unfairly diluted by that artificial increase in population that’s due to locating large prisons, and concentrating those prison populations in rural areas.

It was the Somerset issue and the legacy of Voting Rights Act litigation and the impact of prison-based gerrymandering on solutions to those problems, of course, made a big difference. Not every state has that same sort of unique impact from prison-based gerrymandering. But what was also important was to keep the conversation from drifting into “this is somehow a way for the urban areas like Baltimore City to either make some sort of power-grab or some sort of money-grab.”

It was very important in the educating that we did before the bill was even introduced and before session even started, to explain the difference between correcting the population count for the purposes of drawing district lines and using census numbers fro the purposes of distributing either federal aid to the state and throughout the state and local state aid. So very important to let people know that [The law ending prison-based gerrymandering] is going to have no impact on funding either from the federal government or the way the state distributes funding to local governments.

The bill passed with extremely wide margins. In fact, it was just a handful of legislators in opposition. It’s really important to know that legislators from the affected districts almost unanimously, and certainly in the majority, supported the bill. The Senators from–all of the legislators from Somerset County and the Eastern Shore area supported the bill, and the Senators from the western Maryland districts supported the bill. The only real outspoken opposition came from one delegate in the western Maryland district that was going to be affected with the 18% prison population, and his opposition repeated many erroneous arguments based on concerns about funding would be affected. It’s important for advocates and legislators in states that are dealing with this issue to assure themselves that funding will not be affected, and it won’t be.

I don’t think so.

Thank you, Peter. It’s a pleasure.