Defying one-person, one-vote: prisoners and the "usual residence" principle.

• Author: Taormina, Rosanna M.

INTRODUCTION

Criminal disenfranchisement laws in forty-eight states and the District of Columbia deny the right to vote to all convicted adults in prison. (1) Thirty-two states also disenfranchise felons on parole; thirty disenfranchise those on probation; and thirteen bar ex-offenders who have fully served their sentences from voting for the remainder of their lives. (2) In the 1974 case of Richardson v. Ramirez, (3) the Supreme Court addressed the constitutionality of such laws. In that case, the Court held that the constitutional right to Equal Protection of the Laws (4) does not require a state to permit felons to vote. (5) The Court reasoned that exclusion of felons from the franchise was a historically accepted practice and may be lawful when applied equally to all felons. (6) Despite the Supreme Court's definitive holding, critics of felon disenfranchisement laws have not been silenced. Several decades after the Ramirez decision, the constitutional difficulties inherent in such laws continue to be examined with zeal. (7)

The issue this Comment addresses is not the constitutionality of felon disenfranchisement laws, but how those laws affect the constitutionality of redistricting procedures in state and federal legislative districts. In 1963, Justice Douglas, writing for the Court in Gray v. Sanders, (8) declared, "[t]he conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing--one person, one vote." (9) While Gray dealt with the weight of a person's vote within a previously designated geographical unit, (10) the one-person, one-vote doctrine spilled over into the Court's jurisprudence in examining constitutional challenges to the drawing of congressional and legislative districts. One year after Gray, the Court established that the Constitution imposes a fundamental requirement on those charged with congressional and legislative redistricting--population equality. (11) "In practical terms, population equality means that each district in an apportionment plan should have roughly, if each district in an apportionment plan should have roughly, if not precisely, the same number of people as every other district." (12) As will be discussed in Part II, the Court has been strict in enforcing this requirement.

The problem this Comment addresses arises when we examine how states conduct redistricting. In most states, redistricting is based on data from the decennial census. (13) For purposes of the census, felons are counted where they are imprisoned, not, for example, where they were arrested or where they once resided. (14) Thus, in states that disenfranchise their prison population, the result of current districting practices will be districts with equal population in theory only. In reality, however, the percentage of eligible voters will vary significantly will vary significantly across district lines. Assuming perfect voter turnout, the victorious candidate in a prison system district will have been elected by fewer people than the candidate in a district with no prison. Even considering the fact that voter turnout will vary across districts, an elected official in a no-prison district will effectively be responsible for, and accountable to, more constituents than the official whose district contains a large, disenfranchised prison population. The result is the unequal weighting of votes across district lines--a practice that does not stand on firm constitutional ground.

Counting prisoners for redistricting purposes in the districts in which they are imprisoned is legally problematic on both constitutional and statutory levels. As previously mentioned, such a practice cannot be squared with the constitutional requirement of one-person, one-vote. Additionally, this practice effectively runs afoul of Section 2 of the Voting Rights Act of 1965, (15) which prohibits redistricting plans that have a dilutive effect on the voting strength of racial minorities. (16) The practice in question may violate the Act because it often has the effect of diluting racial blocs or making it appear as though a bloc exists when in fact one does not. Though Voting Rights Act litigation is complex, a discussion of the possible clash between the Act and the practice of counting felons where they are imprisoned for redistricting purposes is warranted.

Additional questions arise beyond the legal framework developed in this Comment. If it is unconstitutional to count prisoners where they are imprisoned for redistricting purposes, then where should they be counted? The counting of members of the military, college students, children, and noncitizens raises similar problems. How should we deal with these populations? What legislative alternatives are there for counting prisoners? And what is the ultimate policy solution for these issues? Finally, if state legislatures, which are ultimately responsible for redistricting, do not act to correct the identified constitutional and statutory infirmities, what is the proper way to litigate this issue? Who has standing? What relief should be sought? Many of these questions lie outside the scope of this Comment and will not be answered here. It is important, however, to acknowledge their existence so that others may pick up where this Comment leaves off.

Part I of this analysis discusses the history of the Supreme Court's one-person, one-vote jurisprudence. Part II addresses the Court's notion of perfect population equality and its standards for evaluating federal congressional and state legislative redistricting plans. In Part III, the analysis shifts to a discussion of the decennial Census and the usual residence principle as they apply to the counting of the United States prison population. Part IV examines the constitutional clash between the Court's one-person, one-vote jurisprudence and the Census' usual residence principle. Part V briefly addresses other populations to which the usual residence principle applies--college students, members of the military, children, and noncitizens--and distinguishes them from the prison population. Part VI is an analysis of the collision between the usual residence principle as applied to prisoners and the Voting Rights Act of 1965. Finally, Part VII offers possible solutions to the constitutional and statutory problems presented by the usual residence principle.

1. THE HISTORY OF ONE-PERSON, ONE-VOTE

   Article I, Section 2 of the United States Constitution reads in part: "[t]he House of Representatives shall be composed of Members chosen every second Year by the People of the several States.... [and] Representatives ... shall be apportioned among the several States ... according to their respective numbers...." (17) The Supreme Court has relied on this section of the Constitution to formulate its one-person, one-vote population equality requirement for congressional districts. (18) Because Article I, Section 2 only speaks to how representatives in our federal system are to be apportioned, the Court has relied on the Equal Protection Clause of the Fourteenth Amendment (19) to extend the one-person, one-vote requirement to state legislative districts. (20) Although the Court's standards for population deviation are more lenient for state legislative districts than congressional districts, (21) the Court is nonetheless strict in its review of state districting practices.

   The Court did not always adhere to a strict review of state districting practices. In fact, when the Court was first asked to review the districting practices of state officials, it declined. In 1946, the Supreme Court was presented with Colegrove v. Green. (22) In that case, members of the Illinois electorate challenged provisions of Illinois law governing federal congressional districts claiming, inter alia, that the laws violated the United States Constitution. (23) The voters alleged "that by reason of subsequent changes in population the congressional districts for the election of Representatives in the Congress created by the [Illinois laws] lacked ... approximate equality of population." (24) Congressional district populations "ranged from a low of 112,000 to a high of 900,000." (25) As a result, the vote of a person in the state's largest congressional district was worth one-eighth as much as the vote of a person in the state's smallest district. (26) Writing for a divided Court, Justice Frankfurter concluded that the voters' claim was not justiciable. "The basis for the suit is not a private wrong, but a wrong suffered by Illinois as a polity." (27) Accordingly, Frankfurter concluded that "[c]ourts ought not to enter this political thicket. The remedy for unfairness in districting is to secure State legislatures that will apportion properly, or to invoke the ample powers of Congress." (28)

   Sixteen years later, however, the Court chose to enter the political thicket of redistricting and has since developed a comprehensive jurisprudence based on the same principle of population equality argued by the Illinois voters in Colegrove. In the 1962 case of Baker v. Carr, (29) plaintiffs challenged the apportionment of members of Tennessee's General Assembly, claiming that Tennessee law "denied [plaintiffs] the equal protection of the laws accorded them by the Fourteenth Amendment to the Constitution of the United States by virtue of the debasement of their votes." (30) The disparity of population deviations in Tennessee's legislative districts was even more severe than those in the Colegrove case, as "the largest district ... had more than 44 times the population of the smallest district." (31) Without ruling on the merits of the case, the Court declared that "the mere fact that the suit seeks protection of a political right does not mean it presents a political question." (32) The Court concluded that "the complaint's allegations of a denial of equal...