PA NAACP: End Prison-Based Gerrymandering
Dear Chair Nordenberg, Senator Ward, Senator Costa, Rep. Benninghoff, and Rep. McClinton: My name is Kenneth Huston and I serve as the President of the Pennsylvania State NAACP. I am honored to provide testimony to the Legislative Reapportionment Commission (“LRC”). The Pennsylvania State NAACP submits comments to impress upon the LRC its affirmative obligation to ensure compliance with the Pennsylvania Constitution and state law by ending the practice of misallocating people who are incarcerated for the purpose of state redistricting. Pennsylvania’s “prison-based gerrymandering” scheme systematically counts people who are incarcerated as residents of legislative districts where prisons are located instead of their home addresses, even though people who are incarcerated are: legally barred from attaining residency in the district where they are incarcerated, cannot vote in the district where they are incarcerated, and do not influence legislators who represent those districts. On average, people in the Commonwealth are incarcerated for 3.8 years, during which time they are involuntarily moved around between different facilities at the discretion of the Department of Corrections, but they will almost certainly return to their prior district on parole and once released. In short, people who are incarcerated are not “constituents” of the districts where they are imprisoned in any realistic sense of the word. The Commonwealth’s inaccurate count inflates population numbers—and thus political influence—in districts that have prisons, while undercounting the population and weakening the political influence of people in districts that do not. The result is to inflate the votes and representation of all people in districts where prisons are located by creating lower constituent-to-representative and voter-to-representative ratios, while diluting the vote and representational power of people in other districts. In short, prison-based gerrymandering violates the principle of (1) “representational equality,” the interest of all constituents, in having equal access to elected political representatives compared to other constituents; and (2) “electoral equality,” the interest of voters in having the same degree of political power as other voters. I. The Commission Has an Affirmative Obligation to Ensure Compliance with State Law. Article II, § 17 of the Pennsylvania Constitution expressly authorizes the Commission to redistrict both chambers of the state legislature. The Commission has an affirmative obligation to ensure that all district maps comply with state law. However, prison-based gerrymandering contravenes state law concerning legal residence, and basic constitutional principles of equality in the democratic process. The practice of prison-based gerrymandering violates Pennsylvania law on three separate bases: 1. First, people who are imprisoned are not legal residents of the communities where they are held. Under Pennsylvania law, Title 25 § 1302(a)(3) mandates, “no individual who is confined in a penal institution shall be deemed a resident of the election district where the institution is located. The individual shall be deemed to reside where the individual was last registered, or at the last known address.” This legal rule comports with common sense: incarcerated individuals do not choose the districts in which they are held and have no real ties to the community outside of the prison. 2. Second, Article I, § 5 of the Pennsylvania Constitution, requires that “[e]lections shall be free and equal.” In League of Women Voters v. Commonwealth, the Pennsylvania Supreme Court held that “any legislative scheme which has the effect of impermissibly diluting the potency of an individual’s vote . . . relative to that of other voters will violate the free and equal’ elections clause.” 178A.3d 737, 804 (Pa. 2018). But, thanks to prison-based gerrymandering, a resident’s vote counts less if you happen not to live near a prison. 3. Third, Article II, § 16 of the Pennsylvania Constitution, mandates that Pennsylvania’s senatorial and representative districts shall be “as nearly equal in population as practicable,” Pa. Const. art II, § 16, “to prevent substantial dilution of the right to vote” Butcher v. Bloom, 203 A.2d 556, 570 (Pa. 1964). Accordingly, election districts must hold roughly the same number of constituents so that everyone is represented equally in the political process and each constituent has the same level of access to an elected official. Unfortunately, prison-based gerrymandering in Pennsylvania artificially inflates political influence in the districts where prisons are located, while diluting the influence of all other voters. In Holbrook v. Commonwealth of Pennsylvania, the National Association for the Advancement of Colored People (NAACP), NAACP Pennsylvania State Conference, Philadelphia NAACP, University of Pennsylvania Chapter of the NAACP, Progressive NAACP, University of Pennsylvania Chapter of Beyond Arrest: Re-Thinking Systematic-Oppression (BARS), Robert L. Holbrook, Abd’allah Lateef, Terrance Lewis, and Margaret Robertson, filed a legal challenge to the practice of prison-based gerrymandering. The lawsuit argued that the Commonwealth’s use of prison-based gerrymandering violates the Pennsylvania Constitution and statutory law because it dilutes the voting and representational rights of Pennsyvlanians of color who live in the state’s urban areas and cities, such as Philadelphia. On January 14, 2021, the Commonwealth Court determined that the State the Legislative Reapportionment Commission was a necessary party for such a challenge to proceed. The opinion did not address the merits of our claims, but rather determined that the suit was more appropriately brought against the LRC during the redistricting cycle. II. Prison-Based Gerrymandering and Minority Voting Rights Ensuring adequate representation for minority voters is one of the overarching imperatives during the redistricting process. Prison-based gerrymandering raises serious concerns because of its racially disparate impact. A Black Pennsylvania resident is almost nine times more likely to be imprisoned than a white resident. People from Philadelphia, Pennsylvania’s largest city, are also disproportionately likely to be incarcerated. Philadelphia is home to 12% of Pennsylvania’s total population, but supplies about 25% of its prison population of over 45,000. All of Pennsylvania’s incarcerated people are held in prisons outside of Philadelphia, mostly in more rural and less populated regions, and they are counted as members of those communities. Without these prison populations, at least four of Pennsylvania’s rural and suburban state legislative districts from the 2010 redistricting cycle are too small to meet population requirements under state and federal law. Additionally, if incarcerated people were counted at their pre-imprisonment homes, it is likely that the Voting Rights Act would require the Commonwealth to draw an additional majority-minority district in Philadelphia. In sum, prison-based gerrymandering dilutes the political power of minority voters in Pennsylvania and undermines principles of fair representation. III. The Solution Pennsylvania is one of the most severe examples of the distortions caused by prison-based gerrymandering—and of its unequal impact on people of color. But the LRC could end this practice by subtracting incarcerated people from the prison location and, in conjunction with the home address data in the custody of the Department of Correction, reallocate these individuals back home for redistricting. The Pennsylvania Legislative Data Processing Center already adjusts Census data to address discrepancies and ensure the accuracy of Commonwealth population data. Moreover, the Census Bureau has adopted a change in the 2020 Census to include correctional population data within the main redistricting dataset (the PL 94-171 file), making it easier to assign incarcerated people to their actual address. Over ten other states have already taken these steps to end prison-based gerrymandering. By reallocating incarcerated individuals to their home addresses, the LRC can equalize the number of true constituents in legislative districts and address the discriminatory effects of prison-based gerrymandering and ongoing violations of state law. “One person, one vote” is a bedrock principle of political equality: everyone’s vote should count equally, regardless of where you live or the color of your skin. The LRC has a unique opportunity to help lead the way to ending prison-based gerrymandering, bringing the redistricting process in line with basic principles of fairness and equality. We urge you to act. Sincerely, Kenneth Huston, Pres. Pennsylvania State NAACP