Court to rule on inmate-counting law

An Albany State Supreme Court justice must decide the constitutionality of a 2010 state law requiring officials to count prisoners as residents of the communities they came from rather than the facilities where they are being held.

Justice Eugene Devine heard arguments Tuesday from lawyers for primarily Republican lawmakers from prison-hosting communities, the state panel charged with creating legislative districts and the state Department of Corrections.

Nearly half of the state's prisoners come from downstate communities, mainly New York City. Most prisons are in upstate communities, however, so to count the incarcerated population as residents of the prison towns would shift population from urban and suburban downstate Democratic districts to rural upstate, generally Republican districts.

Defenders of the law have argued that the pre-2010 system gave upstate districts an unfair advantage, using the bodies of prisoners, who are disenfranchised and can't vote, to artificially inflate their populations at the expense of downstate communities.

The political effect of the practice, they argue, is to dilute the voting power of downstate voters.

"People behind bars shouldn't be counted as constituents of the places where they are incarcerated because doing so inflates the population numbers in those places," said Dale Ho, an attorney for the NAACP Legal Defense Fund who argued in support of the law.

The lawmakers who filed the lawsuit against the New York Legislative Task Force on Research and Reapportionment, which will draw the lines of state legislative districts, contend the state law is unconstitutional because it circumvents federal law.

For the purpose of the federal census -- conducted every 10 years so that legislative lines may be redrawn -- prisoners are counted as residents of the prison-hosting communities.

"Because federal law is controlling, state law that creates a sub-census of prisoners based on where they claim to live at the time before they are incarcerated is forbidden by the constitution," said David Lewis, a Manhattan attorney for the plaintiffs.

The lead plaintiff, state Sen. Elizabeth Little (R-Queensbury), whose district hosts several prisons, could lose 11,610 people, said a study released last month by state Assembly Democrats.

That study also found that 26 of 30 State Senate districts held by Democrats would increase in population if the law is upheld. That's because 58,000 state prisoners would be redistributed, on paper and for purposes of redistricting and reapportionment, into the Democratic districts.In a statement, attorneys for the Brennan Center for Justice, which argued on behalf of the law for the Legislative task force, said, "The new law brings consistency to redistricting in New York, prohibiting the state and all local governments from giving extra political influence to districts that contain prisons."

"Sen. Little's lawsuit seeks to have the new legislation struck down, the effect of which would require legislative districts, most notably her own, which contains 12,000 incarcerated persons, to include prison populations in their apportionment counts to the detriment of all other districts without prisons."