Judge Eugene P. Devine issued a major blow to Senate Republicans who wished to usurp state law and continue present gerrymandering to their upstate benefit. In a decision issued last Friday, Judge Devine decided New York State’s prisoner allocation law must stand.
State law required that “prisoners be identified and counted, for the purposes of creating lines for the state assembly and Senate seats, in the census block containing the inmate’s address prior to his or her incarceration.” It also requires that the State Department of Correctional Services (DOCCS) report to LATFOR inmates’ residential addresses prior to incarceration, if available, instead of the locations of their respective correctional facilities for redistricting purposes. In the event that the inmates prior residential addresses are unknown, were outside the state, or the inmates were confined to Federal institutions, LATFOR “shall consider those persons to have been counted at an address unknown and persons at such unknown address shall not be included in such dataset” to be used to join new legislative districts.
Judge Devine noted that “despite the inherent difficulty in ascertaining consistent prisoner data, the Census Bureau recognized that Congress had required that prisoners be counted in ‘permanent home of record,’ a term which was not clearly defined.” The court found that merely highlighting the difficulties attendant in attempting to collect prisoner residential data did not preclude the current statutory requirement which requires that inmates be counted at that last known address rather than at their correctional facility.
The U.S. Census Bureau acknowledged this was a nationwide issue. In March 2010, Census Bureau Director Robert Groves stated that the Census Bureau counts individuals at their “usual residence” and that, for inmates in particular, “states were free to decide the manner in which prisoners were counted, namely, at the prisons, at their pre-inquest nation addresses, or altogether removed from ‘redistricting formula’ where residential information was unavailable.”
The judge rebutted plaintiff’s argument by stating that “though inmates may be physically found in the locations of their respective correctional facilities at the time the census is conducted, there is nothing in the record to indicate that such inmates have any actual permanency in these locations or have any intent to remain. In fact it is undisputed that inmates are transferred among states correctional facilities at the discretion of DOCCS.” Judge Devine wrote, “There is no evidence that inmates have substantial ties to the communities in which they are in voluntarily and temporarily the located.”
The court acknowledged that the legislature’s enactment of the Prisoner Adjustment Act (PAA) carried an “exceedingly strong presumption of constitutionality,” and that while this presumption is debatable, the Senate Republicans had “a heavy burden of demonstrating unconstitutionality beyond a reasonable doubt.” Judge Devine found that burden unmet.
Plaintiffs alleged that the PAA statute “exacerbates the weight of vote differential between upstate and downstate counties that already exists because even with the total population being counted, there remains the disparate presence in downstate counties of ineligible voters and traditionally lower voter turnout rates,” which the judge was not convinced had any impact on LATFOR’s mandate to create legislative districts which are substantially equal in population.
The judge pointed to a memorandum in support of the legislation which stated that unlike college student and military personnel, inmates do not use local “schools hospitals or other public facilities.”
The judge was not convinced of Senate Republican’s claim of “partisan gerrymandering” in which they alleged that the state law is “the product of a power play by Democratic lawmakers to usurp the strength of the Republican Party, its voters, and elected representatives.” Even if a decision could be made on such a claim, Judge Devine wrote, the court found there was nothing in the record demonstrating that the law constitutes a breach of the legislator’s obligation to substantially comply with the federal and state constitutions.
“Today’s decision by Judge Devine is a victory for fundamental fairness and equal representation. The court affirmed the legality of counting incarcerated individuals in their home communities for the purposes of redrawing district lines, rather than the districts where they are in prison,” said Attorney General Schneiderman. “As a lawmaker, I fought to end the practice of prison-based gerrymandering that distorted the democratic process and undermined the principle of ‘one person, one vote.’ This decision affirms and applies a fair standard to the drawing of state legislative districts and makes it easier for counties to do the same by providing them with an accurate data set.”
Assemblyman Hakeem Jeffries, co-sponsor of the Prisoner Adjustment Act of 2010 said, “I am gratified that the court arrived at the right decision. Last year’s historic legislation ended the injustice of prison-based gerrymandering in New York State. For the purpose of redistricting, counting people in their home communities is fair and one of the core tenets of our democracy. I congratulate Attorney General Eric Schneiderman and the tireless work of his office to ensure that the principle of ‘one person, one vote’ was upheld.”
Senator John Sampson said, “Last week a state court delivered a strong rebuke to Senate Republicans who were trying to circumvent state redistricting laws. The ruling is a clear victory for democracy and equal representation.”
Sen. Kevin Parker – “This is a huge victory, not just for Assemblyman Hakim Jeffries and Sen. Eric Adams who passed that law that was signed by governor Patterson. It is also a huge victory for our communities. We have literally thousands — mostly men —of people in prison who come from communities particularly in Brooklyn. The vast majority of those folks are coming from about seven communities in New York city. Four of them happen to be in Brooklyn. This is going to have a significant impact on the concentration of our votes and our ability to get resources to deal with some of our social service needs that we are going to have in our communities. It’s a big victory and I want to congratulate everybody who has been involved in the struggle. It’s been almost a 20 year struggle to get this legislation passed and to win the court case. It’s a huge victory.
“I think it’s a great victory for our communities and for our representation,” said Congresswoman Yvette Clarke. “We still have to remain vigilant. For too long we have been exploited through a system that was unfair and discriminatory. For upstate districts to claim individuals who happened to be there by virtue of being incarcerated as part of their population meant that in communities downstate in districts like mine, we basically we’re losing the resources we needed to reintegrate them into our communities, to help them and to help our communities maintain strength and posture because all of the resources commensurate with redistricting went into these upstate counties where these individuals were being detained. I think the wisdom of the courts was clear; they understood what this meant for communities in the 11th Congressional District where those who are incarcerated reside. It will enable us to do the types of things in preparation of the return of these individuals to civil society. They are going to come back to where they live and we need to make sure they have housing, healthcare, education, and all the other important reintegration services they need to become productive members of our civil society. It’s a victory for us.”
Kirsten Foy, Director of Community Affairs in the Public Advocate’s office: It’s another victory for common sense. The fact that we had to go through the legislative process in the first place to ensure that people’s rights were protected what’s nonsensical. But we did it. I think the fact that we had to go to court to uphold the legislative process was ridiculous. It was necessary. Prisoners being counted where they are housed as prisoners as opposed to where they come from is it twofold insult to the community. One, it says that we are benefiting financially off of you; we are going to commodify you. But at the same time it said to the community, we’ll going to suck every resource that you have – the human resources, financial resources, and we’ll going to displace those resources and use them for communities that have absolutely nothing to do with the people being housed in prisons. It’s unfortunate that we had to go through it though.”