Prison gerrymandering in Pennsylvania must be addressed
The League of Women Voters has been an active voice for fair redistricting here in Pennsylvania for over 30 years. As the Legislative Reapportionment Commission (LRC) begins hearings in preparation for Census Bureau release of data, we join other organizations in asking attention to an essential element in creating fair maps: counting incarcerated persons in their home communities.
While the Census Bureau counts incarcerated persons in their places of incarceration, the League of Women Voters recently joined 34 other Pennsylvania organizing groups in a letter to commission members asking the LRC to adjust that count and reallocate census data to home communities to ensure a more accurate, equitable count.
Counting temporarily incarcerated Pennsylvanians in the districts where they are temporarily held violates Pennsylvania law, which is clear that an incarcerated individual shall be deemed to reside where the individual was last registered to vote or at his last known address before being confined. Many in Pennsylvania jails and state prisons are still eligible to vote, yet can’t do so where they are confined, so it is obvious that they should not be counted there either.
The count also conflicts with the long-established legal principle that incarceration does not automatically change a person’s residence. More importantly, it runs counter to the principle of “one person, one vote,” which holds that election districts be composed of roughly the same number of constituents so that every person receives the same level of representation.
One result of this practice is that, while the elected officials in the communities housing their prison are technically supposed to represent them, these temporarily incarcerated Pennsylvanians will most often have to call on the elected officials from their home communities for constituent services. This creates a dynamic that is unfair for both residents and elected officials.
Another result of prison gerrymandering is that our district maps inflate the population count, and thus, the political influence, of the districts where prisons and jails are located. As a result, the voting power of everyone living outside of those districts is weakened.
Nationally, the League has been speaking out to end prison gerrymandering for the past decade, and state Leagues have been instrumental in legislation to end the practice in the 11 states that have addressed this legislatively.
Our neighboring states — New York, New Jersey, Delaware, Maryland and Virginia — have all passed legislation to correct this.
Like other redistricting reforms that have garnered strong public support, bills to do the same here in Pennsylvania were never considered in committee.
When the Legislature fails to act, citizens look to the courts. The League filed a redistricting lawsuit in 2018 that yielded new congressional maps. The suit also provided new legal precedent supporting a roadmap to end the miscount of incarcerated people here in Pennsylvania. Specifically, Article II, Section 16 of the Pennsylvania Constitution requires districts that are “as nearly equal in population as practicable.” In 2018, the state Supreme Court found that this provision requires Pennsylvania legislative districts to “accord equal weight to the votes of residents in each of the various districts.” Because temporarily incarcerated Pennsylvanians are, by law and legal precedent, “residents” of their home districts, they should be counted in those home districts, not where they are incarcerated.
The court also clarified the intent of the free and equal elections clause of the Pennsylvania Constitution (Article I, Section 5), stating that “any legislative scheme which has the effect of impermissibly diluting the potency of an individual’s vote for candidates for elective office relative to that of other voters will violate the guarantee of ‘free and equal’ elections afford by Article I, Section 5.”
Maps drawn by counting temporarily incarcerated Pennsylvanians in their prison districts inappropriately shift political power to those districts and dilute the individual vote in other legislative districts across the state that the temporarily incarcerated Pennsylvanians call home.
In recent public hearings the LRC heard from expert witnesses and from impacted individuals who clarified key issues:
• The LRC has the legal authority and moral responsibility to adjust prison data.
• Corrected data is available for use and would not create undue delay in the redistricting process.
• Adjustment of data would have no financial impact on prison towns and communities.
This is a pressing issue tied inextricably with the growth of mass incarceration. We believe it is not possible to create districts that truly represent Pennsylvania counties, constituents and communities without correcting the count of state prison populations. We ask the LRC to address this quickly and prepare for use of adjusted data.