BILL NUMBER:A9834

TITLE OF BILL:  An act to amend the correction law, the legislative law,
and the municipal home rule law, in relation to the collection of census
data

PURPOSE:    Provides that for the purposes of redistricting at the State
and municipal level, incarcerated persons shall be counted as  residents
of their places of residence prior to incarceration rather than as resi-
dents of their place of incarceration.

SUMMARY  OF PROVISIONS:  Section 1 sets forth the legislative intent for
the act.

Section 2 amends section 71 of the Corrections Law to  require  that  in
each  year that the Federal Decennial Census is taken, the Department of
Correctional Services shall within 90 days of the census or by  July  1,
provide  the Legislative Task Force on Demographic Research and Reappor-
tionment with the residential address prior to  incarceration  for  each
incarcerated  person  for  whom  the Department of Correctional Services
provided information to the United States Census  Bureau.  This  section
also  specifies  that  the Task Force may request additional information
pursuant to law and provides for the confidentiality of any  information
delivered to the Task Force.

Section  3 amends the section 83-m of the Legislative Law to require the
              

Legislative Task Force on Demographic Research and  Reapportionment  for
the purposes of the aggregated data set it develops, to remove incarcer-
ated  persons  from  the  population  count  of  the census block of the
correctional facility and, where  possible,  allocate  the  incarcerated
persons  to  the  census  block'  of  their residential address prior to
incarceration. This section requires the Task Force to make such  aggre-
gated  data set available for the drawing of Senate and Assembly as well
as to local governments.

Section 4 amends the Municipal Home Rule law to require  municipalities,
for  the  purposes of redistricting, to remove incarcerated persons from
the population count of the census block of  the  correctional  facility
and,  where  possible,  allocate  the incarcerated persons to the census
block of their residential address prior to incarceration.

Section 5 sets forth a severability provision.

Section 6 provides that the act is effective immediately.

JUSTIFICATION:   Currently, the  United  States  Bureau  of  the  Census
includes  everyone  housed  in  federal,  state,  and local correctional
facilities in its count of the general population of  the  Census  block
that  contains  the facility. The state's current reliance on the Census
Bureau's  flawed  prison  counts  when  drawing  legislative  districts,
violates federal law in two ways: it dilutes minority voting strength in
violation of Section 2 of the Voting Rights Act of 1965; and it violates

the one person, one vote principle of the Equal protection Clause, which
requires  voting  districts  to have equal numbers of residents (because
people in prison are not residents  of  the  districts  where  they  are
incarcerated and counted).

In  1964's  landmarking,  Reynolds  v.  Sims,  377  U.S. 533 (1964), the
Supreme Court held that state legislative  districts  must  represent  a
roughly  equal  number  of  people. Affirming the "one person, one vote"
principle, Chief Justice Warren minced no words in his celebrated  opin-
ion, writing, "Legislators represent people, not trees or acres.  Legis-
lators are elected by voters, not farms or cities or economic interests.
As  long  as  ours  is a representative form of government, the right to
elect legislators in a free and unimpaired fashion is a bedrock  of  our
political system." The Census Bureaus current methodology undermines the
"one  person,  one vote" principle supported by prevailing public values
as well as constitutional jurisprudence.

The Census Bureau's current methodology also violates the New York State
law in two ways: it runs afoul of the New York State Constitution  which
states  in  Article  2,  section  4  that for the purpose of voting, "no
person shall he deemed to have gained or lost a residence-while confined
in any public prison"; Similarly, subdivision 1 of section 5-104 of  the
New  York  Election Law directs that "For the purpose of registering and
voting "no person shall be  deemed  to  have  gained  or  lost  a  resi-
dence...while  confined  in any public prison. In addition, the 1894 New
York Court of Appeals decision in People v Cady, 37 N.E. 673 (N.Y.1894),
stated that people in prison could not be considered  residents  of  the
prison where they are incarcerated.

Based  on federal and state law, people in prison therefore remain legal
residents of their address prior to incarceration.   Unfortunately,  the
current  Census Bureau's methodology disregards this, instead counting a
significant proportion of the national population in  the  wrong  place.
Crediting the population of prisoners to the Census block where they are
temporarily  and  involuntarily held creates electoral inequities at all
levels of government,

These electoral inequities are apparent in New York State, where with  a
prison  population of approximately 60,000, over 75% of people in prison
are people of color and over 70% are from  urban  communities.{1}  Thus,
urban communities such as Albany, Buffalo, New York City, Rochester, and
Syracuse  are  being  counted for the purposes of redistricting in rural
communities, leading to vote dilution for  urban  communities  of  color
across the state.

The  most  significant  vote  dilution, however, in rural communities as
most counties, cities, and towns use federal census data to  draw  their
local  legislative district and ward boundaries. St. Lawrence County, in
northern New York, drew legislative districts with Census 2000 data that
included more than 3,000 people in three correctional facilities  as  if
they were actual residents of two small towns,Ogdensburg and Gouverneur,
The  increased  voting  power  of  Ogdensburg  and  Gouverneur residents

diluted the votes in the many St.  Lawrence County residents who do  not
live  near  those  prisons.  This  inequity  created  a long-running and
disruptive controversy in St.   Lawrence, and a  petition  opposing  the
unequal representation gathered more than 2,000 signatures.{2}

County legislators and supervisors in 13 counties in New York State have
subtracted  the prison population from the official count prior to draw-
ing county legislative districts or designing weighted voting systems to
ensure equal representation and avoid creating a  legislative  districts
that have more people in prison than actual residents. The counties that
have  corrected the census data to remove people in prison before redis-
tricting include: Cayuga, Chemung, Clinton, Dutchess,  Essex,  Franklin,
Greene, Orange, Orleans, Schoharie, Sullivan, Washington, and Wyoming.

In  Essex  County's  detailed justification for the removal of people in
prison, the County offered the following explanation:

"Persons incarcerated in state  and  federal  correctional  institutions
live  in a separate environment, do not participate in the life of Essex
County and do not affect  the  social  and  economic  character  of  the
towns.... The inclusion of these federal and state correctional facility
inmates  unfairly dilutes the votes or voting weight of persons residing
in other towns within Essex Countv..."{3}

These 13 counties in New York State have  joined  municipalities  across
the  country,  by taking matters into their own hands to address, on the
local level, the redistricting inequities that result  from  relying  on
the Census Bureau's counting of people in prison. This removal of people
in  prison  on  the  local  level  does not, of course, put incarcerated
people back in their census blocks prior to incarceration. However, from
the perspective of these rural counties, counting people at home and not
counting them at all is the same thing. Either way, the  data  they  use
for county districts does not contain the prison populations.

About  a  100 local governments exclude, for redistricting purposes, the
Census Bureau's prison counts. A few states (Colorado, Mississippi,  New
Jersey  and  Virginia)  require or encourage local governments to do so,
but the majority of these counties do so on their own.{4}

As awareness in the issue of prison-based gerrymandering has  grown,  so
too  has  interest  in  state-level solutions. Currently, legislation is
pending in Florida, Illinois and Maryland that would determine the  home
addresses of incarcerated people and count them at their addresses prior
to  incarceration. (Senator Shields in Oregon is also expected to re-in-
troduce legislation in the special session during the week  of  February
1,  2010.)  In Wisconsin, a constitutional amendment has been introduced
that would prohibit the state and local governments from including pris-
on populations in the redistricting data.{5}

In addition to the above states, in the past, bills to count  people  in
prison  at  their address prior to incarceration for state redistricting
purposes have been introduced in Texas and Michigan.{6}

States and localities are addressing this issue because of the  distort-
ing  effect  that  people  in  prison have on the drawing of legislative
boundaries and because the  population  is  distinguishable  from  other
populations,  such  as  students and those serving in the military, that
are counted by the Census Bureau in what are referred to as "Group Quar-
ters" for a number of reasons.{7}

Most  importantly,  people  who  have been convicted of a felony and are
incarcerated or on parole cannot vote in New York State, either  in  the
district  where  the  prison  is  located or using an absentee ballot at
their address prior to incarceration.{6} In contrast,  college  students
and  military personal can participate in elections and register to vote
from either their local residence or by submitting an absentee ballot.

In addition, people in prison do not interact with or benefit  from  the
district  where  the  prison  is  based. People in prison do not use the
schools, hospitals, or other public facilities in  the  community  where
the prison is based The costs of the prisons are not borne by the commu-
nity  where  the  prison  is  located,  but rather by all New York State
taxpayers. Costs that are not  covered  by  the  State,  such  as  phone
expenses and commissary bills, are paid for by the families of people in
prison.

In  terms  of  the  amount  of time people in prison are spending in the
community where the prison is located, according to  the  Department  of
Correctional  Services,  in 2006, 15 people (or one tenth of one percent
of all people admitted that year) had a sentence of life without parole;
60% of people admitted had minimum sentences between 1 year and 3 years;
and 5.6% of people had minimum sentences of 10 years or more.{9}

Until the Census Bureau provides the information  necessary-to  allocate
people  in  prison  to  their address prior to incarceration, the way to
address this issue is on a statewide basis. With this  legislation,  New
York  joins  the  ranks  of  states  developing  practical and effective
solutions to count people in prison at their addresses prior  to  incar-
ceration for the purposes of redistricting.

It  is important to note that this legislation is limited to the drawing
of legislative districts, and does not in anyway  revise  or  alter  the
underlying census data. Thus, the legislation has no impact on or effect
on  funding  formulas  and  allocations given to states or within states
that are based on federal census data.  The  Federal  Census  data  will
continue to include prison populations.

LEGISLATIVE HISTORY: New Bill.

FISCAL IMPLICATIONS:  None.

EFFECTIVE DATE:  This act shall take effect immediately.

FOOTNOTES:

{1}    http://www.docs.state.ny.us/Research/Reports/2009/Under   Custody
Report 2009.pdf.

{2} Phantom constituents in the Empire State: How outdated Census Bureau
methodology  burdens  New  York  counties  By Peter Wagner, Meghan Rudy,
Ellie Rappel and Will Goldberg Prison Policy Initiative  July  18,  2007
Section:    IV.    Summary    of   findings   in   individual   counties
http://prisonersofthecensus.org/nycounties/report/html IV.

{3} Essex Local  Law  No.  1  2003,  http//www.prisonersofthecensus/org/
nycounties//essex.html.

{4}   Colo.Rev.Stat.sec.30-10-306.7(5)(e);Miss.Code   Section   47-1-63;
N.J.S.A. 18A:13-8; Va. Code Ann, §24.2-304.1. The Prison  Policy  Initi-
ative  tracks  legislation of this type on a frequently updated page at:
http://www.prisonersofthecensus.org/legislation.html.

{5} S.B. Bill 1386, 112th Regular Session (Fla, 2010); H.B.  4650,  96th
General.  Assembly  (111.2009);  S.B. 400, 427th Session (M.D. 2010), A.
Res, 63, 99th Session (Wis.2009). The Prison  Policy  Initiative  tracks
legislation   of   this   type   on   a   frequently  updated  page  at:
http://www.prisonersofthecensus.org/legislation.html.

{6} H.B. Bill 672, 76th Session (Tx.2009); H.B.4935,94th Regular Session
(M1.2007). The Prison Policy Initiative tracks legislation of this  type
on  a  frequently updated page at:  http://www.prisonersofthecensus.org/
legislation.html.

{7} For more details on who is counted as  a  part  of  Group  Quarters:
http://2010.census.gov/parters/pdh/langfiles/qrb-English.pdf.

{8} http://www.elections.state.ny/us/Voting.html/

{9}  The chart on p.8 of this report from the Department of Correctional
Services      has      these      figures      in      more      detail:
http://docs.state.ny.us/Research/Reports/2009/Court-Commitments
-2008.pdf.