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Federal Court Upholds Maryland Law that Reclassifies Prisoners for Redistricting

by David M. Reutter

On December 23, 2011, a Maryland federal district court three-judge panel upheld a state law that counts prisoners as residents of their legal home address rather than their prison address for redistricting purposes.

For decades, states have used unadjusted census data to set voting districts. The census counts prisoners as residents of the area where their prison is located, even though they cannot vote. This has diluted the voting power of people in areas without a prison while enhancing the political clout of mostly rural prison communities. [See this issue’s cover story].

Following the 2010 decennial Census, Maryland enacted a new redistricting plan in October 2011 for the state’s eight congressional districts. Nine Maryland African-American residents filed a lawsuit that contended the plan violated their rights under Article I, section 2 of the U.S. Constitution, the Fourteenth and Fifteenth Amendments, and § 2 of the Voting Rights Act of 1965, because the plan diluted African-American voting strength within the state and discriminated against African-Americans. For the same reasons, they also challenged Maryland’s “No Representation Without Population Act” (the Act), 28 U.Md.Code Ann., Art. 24 § 1–111, Election Law (“EL”) § 8–701S.C. § 2284(a), which seeks to correct census data for the distortional effects of the Census Bureau’s practice of counting prisoners as residents of the community where they are incarcerated.

The new redistricting plan, which was passed in an emergency legislative session, created two majority African-American congressional districts in Maryland. The goal of the Act was to end a particularly distortional effect of the Census on African-American communities that experience disproportionately high incarceration rates.

“These distortional effects stem from the fact that while the majority of the state’s prisoners come from African-American areas, the prisons are located primarily in the majority white first and sixth districts. As a result, residents of districts with prisoners are systematically ‘overrepresented’ compared to other districts,” wrote the three-judge panel.
“In other words, residents of districts with prisons are able to elect the same number of representatives despite in reality having comparatively fewer voting-eligible members of their community.”

The Act requires officials who draw local, state and federal legislative districts to count prisoners as residents of their last known address. The 1,321 state prisoners who reported pre-incarceration addresses outside Maryland were excluded by the Maryland Department of Planning (MDP) in making the population count adjustments. The MDP’s analysis resulted in the Sixth District, which is in the western part of the state and has most of the state’s prisons, losing 6,754 individuals. Meanwhile, the Seventh District, which includes the city of Baltimore, gained 4,832 individuals.

The district court relied heavily on the Supreme Court’s ruling in Karcher v. Daggett, 462 U.S. 725 (1983). Karcher recognized that “the census may systematically undercount population, and the rate of undercounting may vary from place to place.... If a state does attempt to use a measure other than total population or to ‘correct’ the census figures, it may not do so in a haphazard, inconsistent, or conjectural manner.” Neither Karcher nor the U.S. Constitution requires states or Congress to utilize unadjusted Census data.

It seemed “clear” to the court that Maryland’s adjustments to the state’s census data were made in the systematic manner demanded by Karcher. The MDP followed the multi-step prescribed process of the Act to make the population adjustments. The district court rejected the plaintiffs’ position that if Maryland wants to correct for prisoner-related population distortions, it must also make similar adjustments to account for distortionary effects of college students and members of the military in Census counts.

The three-judge panel held that Maryland is not constitutionally required to make any adjustments for purposes of redistricting. It further observed that students and soldiers are not similarly situated to prisoners for census purposes. “College students and members of the military are eligible to vote, while incarcerated persons are not. In addition, college students and military personnel have the liberty to interact with members of the surrounding community and to engage fully in civic life,” the district court wrote. “In this sense, both groups have a much more substantial connection to, and effect on, the communities where they reside than do prisoners.”

Finally, there was no evidentiary support to the plaintiffs’ allegations that intentional racial classifications were the driving force behind the Act. “In fact, the evidence before us points to precisely the opposite conclusion,” the court stated. Accordingly, summary judgment was granted to the state defendants.

The Prison Policy Initiative, Howard University School of Law Civil Rights Clinic, ACLU of Maryland, Maryland State Conference of NAACP Branches, Somerset County Branch of the NAACP, NAACP Legal Defense and Education Fund, and Demos filed an amicus brief in support of the Act. The plaintiffs appealed the district court panel decision, and the Supreme Court entered a summary affirmance on June 25, 2012. See: Fletcher v. Lamone, 831 F.Supp.2d 887 (D. Md. 2011), affirmed.

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Related legal case

Fletcher v. Lamone