Erasure: Election Results & Prison-based Gerrymandering

“The past was erased, the erasure was forgotten, the lie became the truth”

-George Orwell

This week’s elections have been the topic of discussion since 2016 when Trump was elected. Democrats, social justice warriors and other constituents felt midterms were the time to shift political power from the hands of Republicans into the hands of Democrats. The shift of partisanship wouldn’t completely transform the political climate. Hopefully it could create the tension and conversations necessary to move in a socio-political direction that supported the wellbeing of our nation (especially those whose civil liberties have come under direct threat and imposition by current political actors).

The rhetoric during the election was around political mobilization. If more people could head to the polls and #VoteLikeaBlackWoman, there might be some hope for this country. However, the day of the election, I noticed a division among minority voters about the peculiar tradition of voting especially as it relates to folks who exist with a double consciousness.

The community seemed split between Audre Lorde’s philosophies that we “can’t dismantle the master’s house with the master’s tools,” and her experience saying “I was going to die, sooner or later whether or not I had even spoken myself. My silences had not protected me. Your silences will not protect you…What are the words you do not have yet? What are the tyrannies you swallow day by day and attempt to make your own, until you will sicken and die of them, still in silence? We have been socialized to respect fear more than our own need for language,”

The complexity of these two quotes and perspectives were present in public discourse as many of us contemplated our political practices and voting behavior. There was a lot of conversation around voting privilege, vote-shaming and even non-vote shaming. I think the rhetoric had a lot to do with anxiety and feelings of helplessness. A lot of minorities don’t know who to blame for the system. They are in a perpetual liminal space:  not knowing who to blame and not knowing who to hold responsible. Arguably, we can’t appeal to the feelings of those who do not have a conscious, or at least our level of consciousness on political issues like civil and basic human rights. This idea was thrown against the rhetoric of civic duty, civic responsibility and meritocracy. That if we’d shown up, our needs would’ve been addressed by our representatives. That we should show up to protect the legacies of Fannie Lou Hammer, Sojourner Truth, Lottie Rollin and more.

Both perspectives have some value, but each also has its share of faults. Ultimately, the conundrum seems to be democracy, a system that caters to the majority, can be difficult to romanticize to minorities who stand little chance of political parity without concessions and ally-ship. Showing up isn’t always enough and we have to decide what to with that, the choices seem to be a binary of engagement or apathy.

Either way according to the Times, showing up did something and while many places in the country got redder, 312 districts shifted to blue.

This post aims to look at another phenomenon that is impacting our polls that have very little to do with the record breaking turn out that we saw at midterms. What both of these narratives ignore are what some commentators are inching towards with conversations about the implications of Amendment 4 in Florida, and it’s in relation our incarcerated population.

This blog post will examine prison-based gerrymandering. I hope the information about this practice helps us to find new ways to navigate policy, so we can develop innovative strategies for having minorities vote and having their votes appropriately counted.

According to the NAACP Legal Defense and Education Fund, “prison-based gerrymandering is a practice whereby many states and local governments count incarcerated persons as residents of areas where they are housed when elected district lines are drawn.”

As of 2016, seven states (Colorado, Mississippi, New Jersey, Virginia, Michigan and New York) require or encourage the exclusion of prison populations when redistricting. Though this is a start, it’s imperative to see how we can move this to other states and garner national attention.

According to the US Bureau of Justice Statistics, the total correctional population is around 6.6 million, with 2.2 million incarcerated and the remainder on community supervision. To put that in perspective for you, a quarter of the states in the United States (including New Mexico, Nebraska, Idaho, Hawaii, Delaware) have state populations that are smaller than our total incarcerated population. It’s a pretty significant number.

The census typically counts incarcerated people using the “usual residence rule”, which allocates each person “”the place where a person lives and sleeps most of the time” as of Census Day”

This definition has specific implications for people who have unique housing situations typically called “group quarters” including military service members, people living in dorms and those incarcerated. However, when people are counted there isn’t anything that differentiates permanent residents from those who live in group quarters. Therefore, the data available also fails to capture which members of the population counted in the census are incarcerated and which are not.

According to Stanford’s Law and Policy Review, “there are more than twenty counties in the United States where more than one-fifth of the population is actually comprised of prisoners.” This predominantly impacts the political authority of urban communities of color whose members are disproportionately politically disenfranchised via incarceration. The reason prison-based gerrymandering is such an important issue to examine is because it shifts political power from the urban to the rural. For example, New York’s 114th State Assembly District has the highest percentage of state prisoners of any district in the legislature, almost 7% however, when we examine it with higher scrutiny, we see that of the 5594 African Americans who are counted as “constituents” in that district, 82.6% are incarcerated (See more: https://www.prisonpolicy.org/importing/).

To illustrate why this is a problem more clearly, it means that though incarcerated black and brown people are counted in these predominately white areas as residents, their presence is simply symbolic because they have no voting rights. Not only is their presence symbolic but it also dilutes the communal political power of minorities who are not incarcerated. According to Dale E. Ho, Assistant Counsel and Fried, Frank fellow of the NAACP LDF, “There has only been one other instance in American history where disfranchised, captive populations of people of color were used to artificially inflate political strength: the infamous three-fifths compromise enshrined in Article I, Section 2 of the Constitution.”

This also presents certain legal dilemmas, at least in the state of New York.  In the New York State Constitution, Article II, section 4 says, ““[f]or the purpose of voting, no person shall be deemed to have gained or lost a residence, by reason of his or her presence or absence . . . while confined in any public prison.” This statement was echoed in People v. Cady (2000) where the NY Court of Appeals said that incarcerated people are not legal residents of a prison for purposes of voting because they are there involuntarily. Therefore, it’s clear that incarcerated individuals ought to be thought of as constituents in their own homes rather than political “extras” in rural white America, where most prisons are built.

So, as we’re celebrating amendment four and the blue shift – we need to take a step back and think about the bodies that are counted in prisons while their voices are simultaneously erased. What impact is that having on our political power? How do we address this dilution?

Rather than further dividing ourselves around shame and what our political duties are, prison-based gerrymandering may be a great place to focus our energies as we uncover the various systemic factors that are impacting the strength of the minority vote.

Now that we’ve done the political work to put folks on important platforms, let’s get back to social work and change.

Additional sources: https://www.prisonersofthecensus.org/toobig/size.html

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