Maryland’s “No Representation Without Population” Act was upheld by the U.S. Supreme Court in a ruling June 25. The state law requires voting districts to count the incarcerated in their home district, not where they are imprisoned, for redistricting purposes.
In its ruling, the Court said: “…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.
Civil rights organizations lauded the Supreme Court’s decision. “Today’s Supreme Court decision in Fletcher v. Lamone affirmed the constitutional ‘one person one vote’ foundation of our decade-old campaign to end prison-based gerrymandering,” said Peter Wagner, executive director of the Prison Policy Initiative and the nation’s leading expert on how the U.S. Census Bureau’s practice of counting incarcerated people as residents of the prison locations harms the democratic process, in a statement.
The law bucks the U.S. Census Bureau’s practice of counting prisoners in the voting district where their prison is located, often giving unequal power to smaller, rural districts where larger prisons are built. The artificial inflation of population as a result of counting the prison population caused what in the electoral process is called gerrymandering, which allowed a small political group to remain in power in incumbent districts. It also puts smaller districts on a comparable level with larger areas such as Baltimore by giving those areas more state representatives.
Those districts held a majority white voting block by including black prisoners in their population totals, boosting population by as much as 75 percent in those districts. Incarcerated persons cannot vote but they count when redistricting is assessed every 10 years after the Census.
This practice caught the attention of the ACLU of Maryland, the NAACP, the Prison Policy Initiative and the Howard University Law School’s Civil Rights Clinic, who followed the case as a civil rights violation and together filed an amicus brief with the U.S. Supreme Court on behalf of the state.
“It’s just one of the discriminatory ways laws impact the minority community not only at the front end with the disproportionate number of incarcerated African Americans, but it affects inner-city minority communities on the back end with redistricting,” said Ajmel Quereshi, attorney and law professor at Howard who heads the university’s Civil Rights Clinic.
The ruling was based on the case Fletcher v. Lamone, filed last November in first the state Supreme Court, as a result of a decades-long investigation into gerrymandering in Somerset County in Western Maryland by the ACLU of Maryland and the NAACP.
Patricia Fletcher was the lead plaintiff in the case and was joined by the Maryland Fannie Lou Hamer Political Action Committee and Republicans who agreed that the law led to disenfranchisement among African Americans and other minorities.
According to the Marylander Reporter, the case claimed that with “No Representation Without Population,” violated a 2002 decision by Chief Judge Robert Bell, which reinforced the Constitution of Maryland in saying that political districts must also take into consideration “boundaries of political subdivision.”
The nine plaintiffs in the case found fault with the fact that there was no third majority African American district founded in Maryland’s 5th congressional district and also believed the Fourth and Seventh congressional districts were being diluted in the way of the African American voting power. Monday’s ruling dismissed all claims by the PAC.
According to Deborah Jeon, legal director for the state ACLU, Somerset County reported that it had a 40 percent African American population but up until the 2010 election, the county had never elected an African American to office in its 300-year history. Both civil rights groups have worked with the county for more than two decades on voting rights issues and challenged the redistricting process.
“It took the darkness of Somerset County to get this on our radar screen,” Jeon said.
A majority African American district was created for the county commission, but when a new prison opened, the prisoners were 75 percent of the population. “The district never performed the way it was expected,” Jeon said. “Although African Americans ran, it was hard to find good candidates who could run for public office.”
As a result, the county supported a white incumbent in office for 20 years, Wagner said in a phone interview Monday afternoon. “They used the prison to split the African American community into two pieces so it wasn’t a black majority.”
Western Maryland has a predominantly white population but houses a number of large prisons with incarcerated residents of Baltimore and the heavily black D.C. suburbs but the prisoners were counted in Western Maryland, weighing less on their home communities and weighing more in sparsely populated areas of the state, said Jeon.
“It had clear racial impact,” Jeon added. “It kept down black folks by having the prison population unfairly counted.”
Maryland is the first state in the nation to sign a law changing the way prisoners are counted in the Census for voting districts. The effort was led by the Black Legislative Caucus of Maryland and the bill was introduced by State Del. Jocelyn Pena-Melnyk and State Sen. Catherine Pugh. “The state caucus was concerned that people were not paying attention at the state level, where it has the greatest impact,” Wagner said. “It’s not about funding, it’s about power.”
The bill was passed in 2010, when redistricting last took place, but the upcoming election will be the first time the act will be applied.
“What the Court agreed upon is that Maryland is well within its rights to make sure the power of inner-city minority communities is upheld,” Quereshi said.
New York, Delaware and California have since signed similar laws and Rhode Island, Connecticut, Illinois and Oregon have bills pending. The hope, Jeon said, is that the U.S. Census Bureau will change their practice in time for the 2020 Census as a result of so many states changing on their own.