LatinoJustice PRLDEF Letter Prison Gerrymandering
Dear Members of the Pennsylvania Legislative Reapportionment Commission, LatinoJustice PRLDEF (“LatinoJustice”) respectfully submits this letter in support of the proposed resolution to count incarcerated individuals in their home districts during the 2021 redistricting cycle. As this commission commences the reapportionment process, it is imperative that a resolution should publicly acknowledge the past and continuing disenfranchisement of communities of color when incarcerated individuals are counted as residents of towns in which they do not live instead of counting these individuals in their home districts. While the resolution seeks to address the current redistricting cycle, we also urge the legislative members of this committee to publicly voice support and pass legislation that will bring an end to the archaic practice of counting individuals incarcerated as residents of the suburban towns where prisons are located. It is time for Pennsylvania to belatedly take affirmative steps in restoring electoral power to communities of color that have historically been disenfranchised by a practice that dilutes the votes of urban residents. LatinoJustice originally established as the Puerto Rican Legal Defense and Education Fund (PRLDEF) in 1972, is one of the country’s leading nonprofit civil rights law organizations. We work to advance, promote, and protect the legal rights of Latinos throughout the nation. Our work is focused on addressing systemic discrimination and ensuring equal access to justice in the advancement of voting rights, housing rights, educational equity, immigrant rights, language access rights, employment rights, and workplace justice, seeking to address all forms of discriminatory bias that adversely impact Latinos. As part of our work to protect the rights of voters, we have advocated and litigated against practices that seek to dilute the vote of minority communities such as voter roll purges, failure to provide language assistance at poll sites, and redistricting practices that give undue political power to districts with prisons. Most notably, we fought against the practice of prison gerrymandering in Little v. LATFOR1, a case that upheld New York’s then newly passed law requiring individuals who are incarcerated to be allocated to their home communities for local and state redistricting and reapportionment. Under its own election laws, Pennsylvania already recognizes that individuals who are incarcerated are not residents of the town in which the prison is located - “no individual who is confined in a penal institution shall be deemed a resident of the election district where the institution is located.”2 Furthermore, “the individual shall be deemed to reside where the individual was last registered before being confined in the penal institution, or if there was no registration prior to confinement, the individual shall be deemed to reside at the last known address before confinement.”3 In addition, Pennsylvania 1 Little v. LATFOR, No. 2310-2011 (Sup. Ct. N.Y. Dec.1, 2011). 2 25 PA. STAT. AND CONS. STAT. ANN. § 1302 (West 2021). 3 Id. election law states that “for the purpose of registration and voting, no person shall be deemed to have gained a residence by reason of his presence or lost it by reason of his absence[...]while confined in public prison.”4 Pennsylvania election law thus acknowledges the transient residence of individuals incarcerated in these areas by not granting voting rights in those suburban districts but yet turns around and seeks to use their physical presence to create artificially inflated electoral districts in which they have no say. Currently, many of Pennsylvania’s electoral districts exist because of the improper inclusion of incarcerated individuals in their population. While individuals incarcerated are stripped of their right to vote, they are still counted as residents of electoral districts in which they do not have a voice. The incarceration rate of Pennsylvania was the 25th highest in the nation at 355 per 100,000 people in Pennsylvania.5 This is higher compared to New York’s and Connecticut’s incarceration rates, two states that have passed legislation to eradicate prison gerrymandering.6 Latinos are disproportionately incarcerated in Pennsylvania as demonstrated by data showing that Latinos are three times more likely to be incarcerated than white individuals.7 In addition, by 2017, Latinos were 7% of the Pennsylvania population, yet made up 10% of the prison population.8 The hyper-incarceration of Latinx and Black individuals contributes to a continuous vote dilution of urban communities of color while falsely inflating urban white prison-towns to have greater voices at all levels of government. Evidence of the detrimental effects of prison gerrymandering and the way in which prison locations benefits the typical White voter and weakens the average Black and Latino voter’s representation were reported by Dr. Brianna Remster and Dr. Rory Kramer, sociologists at Villanova University’s Department of Sociology and Criminology. Their report highlighted the manner in which incarceration leads to both representational and vote inequality.9 As part of their research, they used data to remove ineligible voters from districts and instead count them in their home districts. This led to the conclusion that out of the state’s legislative districts “four were too small under the current district apportionment and four districts grew too large using a conservative counterfactual that may underestimate the localized impact of hyper-incarceration on communities of color.” Id. Moving individuals incarcerated from urban, disproportionately non-White areas into majority White, suburban and rural areas artificially boost rural and suburban White representation at the expense of urban, non-White voters. In other words, representational equality, which contemporary American democracy hinges on, is not achieved and instead is purposefully diminished. In addition to assessing representational equality, Dr. Remster and Dr. Kramer examined the shifts in geographic power and non-White representation to assess vote equality as well and found that individuals incarcerated are moved out of urban non-White districts to primarily White suburban and rural districts. Id. at 419. When counting incarcerated people in their home districts, the districts which lose the most residents are concentrated in central and western Pennsylvania, the more rural portions of the state. 4 25 Pa. Stat. Ann. § 2813 (West 2021). 5 The Sentencing Project, State-by-State Data, The Sentencing project https://www.sentencingproject.org/the-facts/#rankings (last visited Jul 2, 2021). 6 Id. 7 Ashley Nellis, The Color of justice: Racial and Ethnic disparity in State Prisons, The Sentencing Project (Jun 14, 2016), https://www.sentencingproject.org/publications/color-of-justice-racial-and-ethnic-disparity-in-state-prisons/ 8 Vera Institute, Incarceration Trends in Pennsylvania, Vera Institute https://www.vera.org/downloads/pdfdownloads/state-incarceration-trends-pennsylvania.pdf (2019). 9 Id. Id. at 427. In contrast, the districts that gain the most are located in southwestern (Pittsburgh), eastern (former industrial cities such as Allentown and Reading), and southeastern Pennsylvania (Philadelphia). Id. Nearly one third of Pennsylvania’s population lives in Philadelphia and three of the districts (two of which are contiguous) that gain more than one standard deviation are located in the heart of Philadelphia’s African American neighborhoods. Id. District 70, northwest of Philadelphia, which also gains more than 837 new residents, contains Norristown, a predominantly Black and Latino municipality. Id. This translates to 263,502 Pennsylvania residents who are constitutionally underrepresented. Id. at 428. The impact of prison gerrymandering does not conclude when the redistricting cycle ends. Its impact remains in effect for the next decade and longer given the maps created are used for electoral representation. The Commission members cannot continue to stand by a practice that uses an individual’s physical temporary residence to grant political power in voting districts they do not call home. These districts are typically not invested in re-entry or education programs for the incarcerated individuals in their district while benefitting from the ability to have districts drawn in a manner which grants them a greater voice and representation at state and federal levels. Equal representation is at the core of our democracy. When a practice exists that artificially inflates the political power of rural residents at the cost of diluting the vote of urban residents, we are perpetuating a continuous disenfranchisement of Latino and Black communities. We urge this committee to adopt a resolution that will finally recognize this harm and count individuals incarcerated in their home districts. Respectfully submitted, /s/ /s/ Fulvia Vargas-De Leon Jose Perez Associate Counsel fvargasdeleon@latinojustice.org Jose Perez Deputy General Counsel jperez@latinojustice.org Principally drafted by Gissel Marquez St. John’s University School of Law Class of 2023 LatinoJustice Summer Legal Intern