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New York Court Upholds Law Requiring Census Count to Use Prisoners’ Pre-Incarceration Address

On December 1, 2011, a New York Supreme Court dismissed a lawsuit that sought a judicial declaration that a state statute requiring prisoners to be counted for reapportionment purposes in their last known residence prior to their incarceration, rather than in their currently assigned prison, violated the state’s constitution.

The plaintiffs, mostly Republican state senators, were challenging Part XX of Chapter 57 of the Laws of 2010, which requires the New York State Department of Corrections and Community Supervision (DOCCS) to report to the New York State Legislative Task Force on Demographic Research and Reapportionment (LATFOR) prisoners’ residential addresses prior to incarceration, if available, instead of their prison addresses for use in drawing new legislative districts. [See: PLN, Oct. 2010, p.18]. Similar laws against prison-based gerrymandering have been passed in Delaware, Maryland and California.
The lead plaintiff in the challenge to the New York statute, state Senator Elizabeth Little,
had 12,000 prisoners in her district. The suit alleged that Part XX violates Article III, § 4 of the New York Constitution because its method of counting prisoners deviates from that recommended by the U.S. Census Bureau. The Census Bureau, however, allows states to create their own methodology for counting prisoners for apportionment purposes, the court held.

“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 an intent to remain,” the court wrote. “In fact, it is undisputed that inmates are transferred among the state’s correctional facilities at the discretion of DOCCS and plaintiffs have not proffered evidence prisoners have substantial ties to the communities in which they are involuntarily and temporarily located.”

After finding the statute did not violate the state constitution, the court determined there was no equal protection violation. The law’s sponsor wrote a memorandum supporting the legislation, explaining that prisoners do not use local “schools, hospitals, or other public facilities,” unlike college students and military personnel who are considered part of “group quarters,” and to count them as inhabitants of communities where prisons are located tends to dilute minority voting strength in those communities, in violation of the federal Voting Rights Act of 1965 and the one-person, one-vote rule. Part XX was enacted to rectify the “electoral inequities” created by counting prisoners as inhabitants in the districts where they are incarcerated.

The court found the plaintiffs lacked standing to bring other claims, or that their claims were conclusory. It also held there was no constitutional violation in the allegation that “Part XX is the product of a power play by Democratic lawmakers to usurp the strength of the ‘Republican Party, its voters, and elected representatives.’”

The defendants’ motion for summary judgment was granted and the case dismissed. The plaintiffs appealed, but on February 14, 2012 their appeal was transferred to the Appellate Division, Third Department, “upon the ground that a direct appeal does not lie when questions other than the constitutional validity of a statutory provision are involved.” The appeal was later dropped in March 2012. See: Little v. LATFOR, Supreme Court for Albany County (NY), Case No. 3210-2011.

Fifteen New York voters represented by a number of organizations – including the Prison Policy Initiative, the Brennan Center for Justice, the Center for Law and Social Justice, Demos, LatinoJustice PRLDEF, the NAACP Legal Defense and Educational Fund, and the New York Civil Liberties Union – had intervened in the case in support of the statute. The Prison Policy Initiative is the driving force behind nationwide efforts to reform the method by which prisoners are counted in census reports.

“Prison-based gerrymandering in New York unjustly diluted the voice of voters and gave undue political influence to districts with large prisons. By dropping [their] challenge, opponents acknowledged they were fighting a losing battle,” stated attorneys for the organizations that represented the intervening parties. “As the redistricting process continues, we are pleased that incarcerated persons will be allocated where they belong – the communities from which they came and to which they overwhelmingly return. This victory helps ensure that all New Yorkers have an equal voice in our democracy.”

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Related legal case

Little v. LATFOR