Amicus Brief in Evenwel v. Abbott Supreme Court

Amicus Brief in Evenwel v. Abbott Supreme Court

September 25, 2015

Amici long have been concerned with the injustices that flow from the manner in which the Census Bureau currently tabulates incarcerated persons in the U.S. Census, and the resulting impact on redistricting – problems that have come to be known as “prison gerrymandering.” Although the case before this Court does not directly address the constitutionality of prison gerrymandering, Appellants nonetheless have suggested that their argument for removing non-voting individuals from the population base used for redistricting somehow is buttressed by the effort to reform prison gerrymandering. See Opp. to Mot. to Dismiss or Affirm 8.

Appellants’ suggestion is flatly incorrect. Indeed, amici and many other groups that oppose prison gerrymandering also strongly oppose Appellants’ effort to require states to limit the population base to voters. Accordingly, amici submit this brief in order to clear away potential confusion and explain how the issue of prison gerrymandering does and does not relate to the issues before the Court in this case.

Section I of the brief describes the problem of prison gerrymandering and outlines its factual and legal context. Specifically, it explains why treating incarcerated persons as “residents” of the prison where they are involuntarily detained, instead of their home communities, creates serious inaccuracies and distorts redistricting, whether or not the incarcerated persons are eligible to vote.

Section II explains why the rule proposed by Appellants – that only voters be included in the population base for redistricting – would not cure the problem of prison gerrymandering. Most importantly, the problems stemming from the miscount of incarcerated persons are the result of where they are counted for redistricting purposes – not whether they are counted. Creating a constitutional requirement to exclude non-voting populations from the population base used for redistricting would not correct the distortions that flow from the miscount of incarcerated persons, and in fact could exacerbate those distortions.

Finally, Section III explains that the problem of prison gerrymandering may implicate Equal Protection concerns for reasons entirely distinct from the arguments advanced by Appellants. Appellants contend that the Fourteenth Amendment to the U.S. Constitution requires the Court to enshrine the goal of electoral equality above the goal of representational equality. The constitutional arguments against prison gerrymandering, by contrast, require no judicial choice between the goals of electoral equality and representational equality, because prison gerrymandering cannot be justified by either theory of representation. Accordingly, to the extent they invoke the problem of prison gerrymandering as supporting their chosen Fourteenth Amendment theory, Appellants are relying on a false parallel. 

Read the full Amicus Brief here.