NEW YORK -- On Friday, Dec 23, a federal three-judge panel unanimously upheld the constitutionality of Maryland’s landmark “No Representation Without Population Act,” which counts incarcerated people as residents of their legal home addresses for redistricting purposes. Demos Democracy Program Director Brenda Wright hailed the ruling in Fletcher v. Lamone: “This federal court ruling marks the most significant legal victory to date for the campaign to end prison-based gerrymandering. The decision should encourage other states to reform their redistricting laws and to end the distortions in fair representation caused by treating incarcerated persons as residents of the prison.”
This federal court ruling marks the most significant legal victory to date for the campaign to end prison-based gerrymandering. The decision should encourage other states to reform their redistricting laws and to end the distortions in fair representation caused by treating incarcerated persons as residents of the prison.
The Maryland law addresses a long-standing problem in the federal Census that counts incarcerated people as residents of the prison location, even though they cannot vote there, and they remain residents of their home community for virtually all other legal purposes. Demos submitted an important amicus brief to present the factual and legal basis supporting the constitutionality of Maryland’s reform law and to explain how the law protects minority voting rights.
The opinion for the Court cites the amicus brief in holding that the No Representation Without Population Act was an important Maryland civil rights victory: “As the amicus brief … makes clear, the Act was the product of years of work by groups dedicated to advancing the interests of minorities.” (p. 20). Judge Williams, in his concurring opinion, calls our brief “particularly impressive and persuasive.” (p. 49). Demos worked with the Howard University Civil Rights Clinic, the ACLU of Maryland, the Maryland and Somerset County NAACP, the NAACP Legal Defense Fund, and the Prison Policy Initiative, on the brief. (The amicus brief did not address other claims in the lawsuit, which alleged, among other things, that the state should have drawn a third majority-minority congressional district).
The decision in Fletcher v. Lamone constitutes the most significant federal court holding to date on the factual and legal justification for states to reallocate incarcerated persons to their home residences for purposes of redistricting. Quoting the state’s summary, the Court states that “the Act is intended to ‘correct for the distortional effects of the Census Bureau’s practice of counting prisoners as residents of their place of incarceration.” The court goes on to explain that “These distortional effects stem from the fact that while the majority of the state’s prisoners come from African-American areas, the state’s prisons are located primarily in the majority white First and Sixth Districts. As a result, residents of districts with prisons are systematically ‘overrepresented’ compared to other districts.” (p. 9)
The Court rejected the principal argument advanced against the Act’s constitutionality – that Article I, Section 2 of the Constitution forbids states from making adjustments to U.S. Census data in drawing congressional districts. Instead, embracing the analysis advanced in our amicus brief, the court ruled that “a State may choose to adjust the census data, so long as those adjustments are thoroughly documented and applied in a nonarbitrary fashion.” (p. 13). The Court found that The No Representation Without Population Act and its implementation by the Maryland Planning Department met that standard: “As required by the regulations implementing the Act, … [the Maryland Department of Planning] undertook and documented a multistep process by which it attempted to identify the last known address of all individuals in Maryland’s prisons…. This process is a far cry from the ‘haphazard, inconsistent, or conjectural’ alterations the Supreme Court rejected in Karcher [v. Daggett].” (pp. 16-17)
The opinion is also significant for its treatment of objections that are often raised to proposals for ending prison-based gerrymandering. The Court rejected plaintiffs’ argument that the Act is legally vulnerable because it reallocated incarcerated persons to their home addresses but failed to do the same for groups such as military and students. The Court called the assumption that these populations are all similarly situated to be “questionable at best,” explaining: “College students and members of the military are eligible to vote, while incarcerated persons are not. In addition, college students and military personnel have the liberty to interact with members of the surrounding community and to engage fully in civic life. In this sense, both groups have a much more substantial connection to, and effect on, the communities where they reside than do prisoners.” (p.18)
The Court also rejected the plaintiffs’ criticism that the state was not able to determine previous home addresses for 100% of incarcerated persons, holding that the state had made best efforts to improve the Census data: “Because some correction is better than no correction, the State’s adjusted data will likewise be more accurate than the information contained in the initial census reports, which does not take prisoners’ community ties into account at all.” (pp.18-19).
The Court’s opinion noted that the Census Bureau itself has supported efforts by states to allocate incarcerated persons to their home address, pointing to the new Advance Group Quarters data which the Census Bureau published specifically to ““enable states ‘to leave the prisoners counted where the prisons are, delete them from redistricting formulas, or assign them to some other locale.’” (p. 16)
Finally, the Court resoundingly rejected the plaintiffs’ groundless claim that the No Representation Without Population Act was somehow racially discriminatory, holding that “the evidence before us points to precisely the opposite conclusion” (p.19) and that “the Act was the product of years of work by groups dedicated to advancing the interests of minorities.” (p. 20)
Because the No Representation Without Population Act was found to satisfy even the stricter standards applicable to congressional districts, the opinion bodes well for the constitutionality of similar laws that apply to state legislative and local redistricting, where governmental discretion to make adjustments in Census data is even clearer. New York, Delaware and California have already enacted such legislation. The federal panel’s ruling that Maryland’s law meets constitutional requirements and was fairly implemented should encourage other states to pass similar laws and will hopefully encourage the Census Bureau to change its policy on where incarcerated people are counted. It also marks the second legal victory in less than a month for the campaign to end prison-based gerrymandering; a New York State trial court upheld New York’s law against a state constitutional challenge on December 2.
The Maryland federal court issued its ruling late on the Friday before closing for the Christmas weekend, and just three days after a hearing on Tuesday December 20th. The Court had promised a decision by the end of January, but acted more quickly in light of upcoming election deadlines and its conclusion that the lawsuit was without merit. The case, Fletcher v. Lamone, was a Republican-backed lawsuit that challenged the congressional plan enacted by the state legislature. The suit raised claims of partisan gerrymandering and racial discrimination against African-Americans in the way district lines were drawn. Three of the claims attacked the No Representation Without Population Act as part of that otherwise unrelated lawsuit. The plaintiffs have not announced a final decision on whether they will pursue an appeal to the U.S. Supreme Court, which would have to be filed within 30 days.