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As Democrats in the New York State Senate strive to squeak out a long sought-after majority in the upper house of the legislature, they might just get help from tens of thousands of convicts from Brooklyn, Manhattan and the Bronx.

The U.S. Census Bureau counts the state's 71,466 prisoners as “residents” of their cells upstate, inflating the populations of small towns such as Malone, Chateaugay and Dannemora, where the prisons are located.

But according to the state Department of Correctional Services, 60 percent, or 43,740, of the state's prisoners are from New York City. Because of the dramatic upstate-downstate divide between the political parties, this means prisoners' own – overwhelmingly Democratic – neighborhoods in NYC lose demographic heft while overwhelmingly Republican prison towns gain numbers. That's what matters here rather than votes cast, as the vast majority of prisoners in New York state are barred from voting.

It's not just an academic problem for data nerds, according to Peter Wagner of the Prison Policy Initiative, a Massachusetts-based nonpartisan research group that has taken the lead in pushing the census bureau to count prisoners at their last known address. That's because all those city people puffing up the populations of small towns in the north add up to an entire extra senate district, and help account for the generation-long Republican hold on the state senate.

“If you send 40,000 prisoners upstate, plus you draw each upstate district several thousands too small, that adds up to a district,” Wagner said, referring to the fact that any state legislative district is legally permitted to be 5 percent larger or smaller than the average district population (which is 306,072 for the state senate.)

State Sen. Eric Schneiderman (D- Manhattan) hopes legislation he introduced Jan. 29 will change that. Bill S1934 would adjust the data lawmakers use to draw legislative districts in order to count prisoners where they are from, not where they are housed. If it gets support, the measure could shift the balance of population power back to New York City, and to the Democrats. Assemblyman Adriano Espaillat (D-Manhattan) introduced a partner bill in the lower house Feb. 5.

The bill has little hope of passing the Republican-controlled senate. Majority Leader Joseph Bruno was not available for comment as of press time. However, when the issue surfaced as a side note in a voting rights case before the U.S. Court of Appeals for the Second Circuit last May, Bruno was unmoved. His spokesman John McCardle saw no need to change the process.
“What we do with the lines and with reapportionment is based on the law, and this is what the law allows for. I don't want to equate students with prisoners, but we count both where they are,” McCardle told the New York Times.
But in the swiftly changing landscape of Gov. Spitzer’s Albany, the two-seat Republican majority may not last until the next general election in 2008.

It's not all about politics, Schneiderman said. He introduced the bill both in 2005 and 2006, when Republicans had a more comfortable majority in the senate. Counting incarcerated New York City residents in the upstate districts that contain the prisons adds voting power to those districts without representing the interests of the prisoners, he argues, and it dilutes the voting power of city districts. (Meanwhile just 3,058 prisoners are held in New York City, and all but 686 of them are from here.)

“We need to deal with this, not just as a political issue, but as a moral issue. The argument is that we really should be doing as good a job as we can so that we have an accurate count that doesn't dilute the voting power of poor people,” says the senator. “Working in the legislature, we look at poor communities, like the one I represent in Washington Heights: people tend to have less resources for their schools, less resources for transportation, less access to health care. Our constituents are told to get into the political process and fight for change, and yet the same state actors dilute their vote.”

Of course the matter isn't as simple as erasing a senate district in St. Lawrence County and squeezing another one into Brooklyn, cautions Wagner of the Prison Policy Initiative.

“It's a cascading effect starting up in the northern corner of New York,” Wagner said, explaining that redrawn districts would push southward throughout the state until districts that straddle the Bronx and Westchester, or Queens and Nassau County, would shift completely into the city. “The effect to New York City would be one or two more seats in each chamber that would be New York City-focused instead of suburban-focused.”

While the Prison Policy Initiative has worked on legislation across the country, Wagner thinks New York is in a position to make a real difference. “I'd like to see New York City take the lead to develop solutions to this problem in the state and take the lead in pressuring the census bureau. The census wants to do what the data users want,” he said.

Schneiderman's legislation instructs the prisons to report to the state Board of Elections the name, age, sex, race and last known address of everyone it includes in the official population report on census day. The state Department of Correctional Services already collects prisoners' last known addresses when it processes them. The Board of Elections would then adjust population counts for each census tract. When the pens come out in Albany for redistricting, politicians would be working with population counts of people, not prison beds. “It's a pretty simple administrative task,” Schneiderman said.

The Schneiderman-Espaillat bills are only one in a constellation of possible solutions to the prison counting puzzle, Wagner said in testimony before the state senate Committee on Government Operations in October.

New York state could petition the census bureau to use the 2010 census as a dry run to study the possibility of gathering last known addresses from the Department of Correctional Services and tallying those prisoners in their home census tracts, basically taking on the role laid out for the state Board of Elections in the Schneiderman bill. The Census Bureau in a February 2006 report, called Tabulating Prisoners at Their 'Permanent Home of Record' Address, argued such an endeavor would cost $250 million because not all prisons collect home address information and others have incomplete data.

In its September 2006 report Once, Only Once, and in the Right Place, the National Research Council dismissed that argument, advocating for the bureau to begin collecting prisoners' home addresses and studying whether those should be used in the census.

While time is running out to persuade the U.S. Census Bureau to change its methods for 2010, Wagner said, there is a half measure that would at least stop voting power inflation in districts with prisons: Don't count the prisoners. If the census bureau simply released its prisoner census data before the state redistricting committee redrew lines in 2012, lawmakers could subtract the prisoners to count only free residents.

The notion of not counting a group of primarily black and Latino men sounds disturbingly like disenfranchisement, Wagner admits, but says “faced between counting prisoners in the wrong place and not counting them at all, not counting them is better.”

About 100 rural counties nationwide remove the prison population from their tallies to determine local government representation, including southern states that receive extra Justice Department scrutiny under the Voting Rights Act. Such a removal in New York state could be an “interim solution” that wouldn't affect any other governmental recordkeeping, he said.

“Before the Civil War the census counted slaves as three-fifths a person. This inflated the population of the southern, slave-holding states. It would have been better to count the slaves as free people in abolitionist Massachusetts, but at very least they should not have benefited Virginia's level of representation” in the U. S. Congress, Wagner said.

This story has been corrected.

– Eileen Markey