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Same as: S6725 Versions: A9834A, A9834

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A9834 Actions

A9834A - REPORTED REFERRED TO RULES - Jun 16, 2010
A9834A - AMEND AND RECOMMIT TO CORRECTION - Jun 9, 2010
A9834A - PRINT NUMBER 9834A - Jun 9, 2010
A9834 - referred to correction - Feb 3, 2010
A9834A - REFERRED TO CORRECTION - Feb 3, 2010

A9834 Memo

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.

A9834 Text

S T A T E O F N E W Y O R K
9834
I N ASSEMBLY February 3, 2010
Introduced by M. of A. JEFFRIES, ESPAILLAT, DINOWITZ, ARROYO, P. RIVERA, HEASTIE, LAVINE, BENJAMIN, KAVANAGH, KELLNER, LUPARDO, McENENY - Multi-Sponsored by -- M. of A. BOYLAND, CLARK, CRESPO, GIBSON, GLICK, HOOPER, LATIMER, PEOPLES-STOKES, PERRY, ROSENTHAL, STIRPE, TITONE, TOWNS -- read once and referred to the Committee on Correction

AN ACT to amend the correction law, the legislative law, and the munici pal home rule law, in relation to the collection of census data

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM BLY, DO ENACT AS FOLLOWS:


Section 1. Legislative intent. The legislature finds that for purposes of determining legislative districts, incarcerated persons in correc tional facilities in this state have been classified as residents of the districts where they are incarcerated rather than as residents of their places of residence prior to incarceration. Article 2, section 4 of the New York constitution requires that for the purpose of voting, no person shall be deemed to have gained or lost a residence while confined in any public prison. Likewise, subdivision 1 of section 5-104 of the election law directs that for the purpose of registering and voting no person shall be deemed to have gained or lost a residence while confined in any public prison. Despite these provisions, the legislature finds that the decennial census does not provide the information necessary to allocate incarcerated persons to their residences prior to incarceration. This legislation is intended to facilitate the proper allocation of incarcer ated persons to their residences prior to incarceration for purposes of determining legislative districts, without requiring revision of the enumeration of the decennial census.

S 2.

Section 71 of the correction law is amended by adding a new subdivision 8 to read as follows:
8. (A) IN EACH YEAR IN WHICH THE FEDERAL DECENNIAL CENSUS IS TAKEN BUT IN WHICH THE UNITED STATES BUREAU OF THE CENSUS DOES NOT REPORT INCAR CERATED PERSONS AT EACH SUCH PERSON'S RESIDENTIAL ADDRESS PRIOR TO INCARCERATION, THE DEPARTMENT OF CORRECTIONAL SERVICES SHALL BY JULY FIRST OF THAT SAME YEAR DELIVER TO THE LEGISLATIVE TASK FORCE ON DEMO EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD15664-02-0
A. 9834 2 GRAPHIC RESEARCH AND REAPPORTIONMENT THE FOLLOWING INFORMATION FOR EACH INCARCERATED PERSON SUBJECT TO THE JURISDICTION OF THE DEPARTMENT:
(I) A UNIQUE IDENTIFIER, NOT INCLUDING THE NAME, FOR EACH SUCH PERSON LOCATED IN THIS STATE ON THE DATE FOR WHICH THE DECENNIAL CENSUS REPORTS POPULATION FOR THOSE INCLUDED IN ANY REPORT PROVIDED TO CENSUS OFFI CIALS, IF THE FORM, RESPONSE, OR REPORT INDICATES THAT THE PERSON RESIDES AT THE CORRECTIONAL FACILITY; (II) THE STREET ADDRESS OF THE CORRECTIONAL FACILITY IN WHICH SUCH PERSON WAS INCARCERATED AT THE TIME OF SUCH REPORT; (III) THE RESIDENTIAL ADDRESS OF SUCH PERSON PRIOR TO INCARCERATION (IF ANY); AND (IV) ANY ADDITIONAL INFORMATION AS THE TASK FORCE MAY SPECIFY PURSUANT TO LAW. (B) THE DEPARTMENT SHALL PROVIDE THE INFORMATION SPECIFIED IN PARA GRAPH (A) OF THIS SUBDIVISION IN SUCH FORM AS THE LEGISLATIVE TASK FORCE ON DEMOGRAPHIC RESEARCH AND REAPPORTIONMENT SHALL SPECIFY. (C) NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THE INFORMATION REQUIRED TO BE PROVIDED PURSUANT TO THIS SUBDIVISION SHALL NOT INCLUDE THE NAME OF ANY INCARCERATED PERSON AND SHALL NOT ALLOW FOR THE IDEN TIFICATION OF ANY SUCH PERSON THEREFROM. THE SAME SHALL BE TREATED AS CONFIDENTIAL AND SHALL NOT OTHERWISE BE DISCLOSED EXCEPT AS AGGREGATED BY CENSUS BLOCK FOR PURPOSES SPECIFIED IN SUBDIVISION THIRTEEN OF SECTION EIGHTY-THREE-M OF THE LEGISLATIVE LAW.

S 3.

Section 83-m of the legislative law is amended by adding a new subdivision 13 to read as follows:
13. (A) THE TASK FORCE SHALL SPECIFY THE FORM IN WHICH THE DEPARTMENT OF CORRECTIONAL SERVICES SHALL PROVIDE SUCH INFORMATION REQUIRED TO BE REPORTED TO THE TASK FORCE PURSUANT TO SUBDIVISION EIGHT OF SECTION SEVENTY-ONE OF THE CORRECTION LAW. (B) UPON RECEIPT OF SUCH INFORMATION FOR EACH INCARCERATED PERSON SUBJECT TO THE JURISDICTION OF THE DEPARTMENT OF CORRECTIONAL SERVICES, THE TASK FORCE SHALL DETERMINE THE CENSUS BLOCK CORRESPONDING TO THE STREET ADDRESS OF EACH SUCH PERSON'S RESIDENTIAL ADDRESS PRIOR TO INCAR CERATION (IF ANY), AND THE CENSUS BLOCK CORRESPONDING TO THE STREET ADDRESS OF THE CORRECTIONAL FACILITY IN WHICH SUCH PERSON WAS HELD SUBJECT TO THE JURISDICTION OF SUCH DEPARTMENT. UNTIL SUCH TIME AS THE UNITED STATES BUREAU OF THE CENSUS SHALL REPORT EACH SUCH INCARCERATED PERSON AT SUCH PERSON'S RESIDENTIAL ADDRESS PRIOR TO INCARCERATION, THE TASK FORCE SHALL USE SUCH DATA TO DEVELOP A DATABASE IN WHICH ALL INCAR CERATED PERSONS SHALL BE REMOVED FROM THE RESPECTIVE CENSUS BLOCKS CORRESPONDING TO THE STREET ADDRESSES OF THE CORRECTIONAL FACILITIES IN WHICH THEY ARE HELD SUBJECT TO THE JURISDICTION OF SUCH DEPARTMENT, AND WHERE POSSIBLE, ALLOCATED TO THE POPULATION COUNTS PROVIDED BY THE UNITED STATES BUREAU OF THE CENSUS FOR REDISTRICTING PURPOSES, SUCH THAT EACH GEOGRAPHIC UNIT REFLECTS INCARCERATED POPULATIONS AT THEIR RESPEC TIVE RESIDENTIAL ADDRESSES PRIOR TO INCARCERATION RATHER THAN AT THE ADDRESSES OF SUCH CORRECTIONAL FACILITIES. THE TASK FORCE SHALL DEVELOP AND MAINTAIN THIS AMENDED POPULATION DATA SET AND SHALL MAKE SUCH AGGRE GATED DATA SET AVAILABLE FOR THE DRAWING OF ASSEMBLY AND SENATE DISTRICTS. THE TASK FORCE ALSO SHALL MAKE SUCH AGGREGATED DATA SET AVAILABLE TO LOCAL GOVERNMENTS, AS DEFINED IN SUBDIVISION EIGHT OF SECTION TWO OF THE MUNICIPAL HOME RULE LAW.

S 4. Subclause (i.) of clause (a.) and clause (c.) of subparagraph 13 of paragraph a of subdivision 1 of section 10 of the municipal home rule law, as added by chapter 834 of the laws of 1969, are amended to read as follows:
A. 9834 3 (i.) The plan shall provide substantially equal weight for [all] the [voters] POPULATION of that local government in the allocation of repre sentation in the local legislative body. (c.) As used in this subparagraph the term "population" shall mean residents, citizens, or registered voters. FOR THESE PURPOSES, NO PERSON SHALL BE DEEMED TO HAVE GAINED OR LOST A RESIDENCE BY REASON OF HIS OR HER PRESENCE OR ABSENCE, OR TO HAVE BECOME A RESIDENT OF A LOCAL GOVERN MENT, AS DEFINED IN SUBDIVISION EIGHT OF SECTION TWO OF THIS CHAPTER, BY REASON OF HIS OR HER PRESENCE, WHILE SUBJECT TO THE JURISDICTION OF THE DEPARTMENT OF CORRECTIONAL SERVICES. A population base for such a plan of apportionment shall utilize the latest statistical information obtainable from an official enumeration done at the same time for all the residents, citizens, or registered voters of the local government. Such a plan may allocate, by extrapolation or any other rational method, such latest statistical information to representation areas or units of local government, provided that any plan containing such an allocation shall have annexed thereto as an appendix, a detailed explanation of the allocation.

S 5. Severability. If any section, subdivision, paragraph, subpara graph, clause or other part of this act or its application is held to be invalid by final judgment of a court of competent jurisdiction, such invalidity shall not be deemed to impair or otherwise affect the validi ty of the remaining provisions or applications of this act that can be given effect without such invalid provision or application, but such invalidity shall be confined to the section, subdivision, paragraph, subparagraph, clause or other part of this act or its application directly held invalid thereby, which are declared to be severable from the remainder of this act. It is declared to be the intent of the legis lature that this act would have been enacted but for any such invalid provision or application thereof.

S 6. This act shall take effect immediately; provided, however, that the amendments to section 83-m of the legislative law made by section three of this act shall not affect the repeal of such section and shall be deemed repealed therewith.

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