Some of the commissioners charged with redrawing Colorado’s congressional maps have raised objections to a law requiring them to count state prisoners where they lived prior to their incarceration, instead of where they’re locked up, drawing sharp responses from members of the panel who back the prisoner reallocation law.
While only a minority of commissioners expressed skepticism about whether they should make the prisoner adjustments, the commission’s legal and technical staff claim the law is probably impossible to follow with perfect precision, because of the slight statistical noise added to U.S. Census Bureau statistics to protect privacy.
And a Colorado Supreme Court ruling scheduled to come Tuesday could have a significant effect on the constitutionality of the law in the first place.
State legislators passed the law in 2020, with supporters arguing it's unjust to count prison populations in the rural and sparsely populated locations where jails and prisons are disproportionately located. Because counting prisoners where they’re incarcerated means a larger population count in areas containing prisons, and because nearly all state prisoners are felons who can’t vote, the non-prisoner residents near prisons end up with greater political and voting power than they would have without the prison, and at the expense of political and voting power in the areas where the prisoners lived, which is also where they're considered residents for some other bureaucratic purposes.
To correct the distortion in political allocation caused by counting prisoners where they’re incarcerated, the law orders the state redistricting commissioners to determine where inmates held residency before being imprisoned, and add the prisoners’ headcount to those areas instead.
But how and whether the commission should attempt to carry out the law has led to tense disagreement.
“How do we adjudicate each individual? How do we know for each person that were trying to reallocate, where they came from, where they’re going, where they want to be, where they intend to go?” congressional redistricting commissioner Bill Leone said during the panel’s May 19 hearing. “Those kinds of individual adjudication questions have never been part of a redistricting process and they can’t possibly be part of it.”
Leone — a former U.S. attorney for Colorado, a former member of the state's Independent Ethics Commission, and one of the congressional redistricting commission’s four Republicans — leveled multiple criticisms of the 2020 law. He argued it will have minimal practical effect and that it may not be possible, due to technical aspects of the U.S. Census Bureau’s population data.
Leone contends the law is misguided because prison populations grow over time, and they are a revolving door of sorts. If someone from central Denver is incarcerated in a rural area, like at the Arrowhead Correctional Facility in Cañon City, even when that person is released back to their home, Leone said, they will likely be replaced in the prison by someone else from central Denver.
After decades of swelling jail and prison populations, criminal justice reforms in Colorado have led to slight declines in the jail and prison populations over the past 10 years.
Making the adjustment, Leone also argued, won’t make a significant difference in how political lines are drawn. The redistricting commission's staff has found around 14,000 prisoners whose residence can be determined and accounted for under the law, or about one-quarter of one percent of the state population. Congressional districts will have 722,000 residents, meaning the difference on any of the eight congressional districts will be as high as 1.9%, if all the prisoners were in a single district, which they likely won't be.
“We should give very serious consideration to just leaving it alone,” Leone said, adding that he isn’t entirely resolved to abandoning the prisoner reallocation, but that the commission should consider it.
Finally, he said the prison reallocation would end up looking partisan, because it would move some people from rural areas to urban areas, meaning from typically Republican areas to typically Democratic areas.
Commissioner Jason Kelly, another of the four Republican commissioners and the Alamosa County Attorney, raised similar questions about the law, but several other congressional redistricting commissioners, including other Republicans on the commission, voiced disagreement with commissioners Leone and Kelly, reiterating their support for what the legislation aims to accomplish.
“Even if this is imperfect — we learned earlier last month and this month that the differential privacy skews the data, so it’s an imperfect system — but were not asked to get it perfect. Were asked to give it a try. And if we get an 80% or 90% solution, that sets the stage for the next commission to get maybe a 95% or 99% solution,” said Republican commissioner Danny Moore. “So I’m not against trying, and I think we owe it to those citizens who will be voting in two or three years to be able to vote and be represented in their district.”
Colorado allows felons to vote once their sentence is over.
Commissioner Moore and Democratic commissioner Lisa Wilkes said the practice of counting prisoners is in some ways reminiscent of American slavery, which commissioner Leone said was an unfair comparison.
“This is not a question of representation. It’s not a three-fifths question, it’s not a slavery question and it’s not a racial question,” Leone said.
The state supreme court will rule Tuesday on a different issue, but also regarding the ability of the legislature to instruct the commissions to take specific actions in the redistricting process.
The issue at question in the supreme court case is whether lawmakers can tell the commission to begin the mapping process without the decennial census data that would normally be delivered to states already, but which is months delayed this year, because of delays in collecting the census data caused by the coronavirus pandemic.
The redistricting commissioners have argued that the law is unconstitutional because lawmakers lack the authority to adjust the redistricting process passed by voters and put into the state constitution. Instead, the commissions’ attorneys say it’s solely up to the commissioners themselves to determine how to interpret constitutional requirements, and that lawmakers are restricted from inserting themselves in the process.
If the court rules in favor of the commissions, and says state lawmakers can’t legislate redistricting procedures, then the prisoner reallocation law could also be moot, unenforceable or unconstitutional. Such a ruling could also prohibit lawmakers from future legislating on the issue of redistricting.
Irrespective of the coming court ruling and the skepticism of some commissioners, the commissions’ staff have said they’re worried that the law might not be something they could follow with high levels of precision, because of a privacy-protection measure that will be added to the decennial census data called “differential privacy,” and because the home residence has not been possible to locate for some prisoners.
The Census Bureau adopted measures in the past to protect individual privacy. The privacy method used this year adds small amounts of intentional error to small census geographies, complicating the effort required to properly reallocate prisoners.
Added with the unknown residence addresses for some prisoners, the technical limitations mean following the prisoner reallocation law could be challenging to impossible to follow with perfect or near perfect precision.
Two advocates for the prisoner reallocation law, Amanda Gonzalez, the executive director of Colorado Common Cause, an advocacy group that focuses civil and political rights, and Aleks Kajstura, the legal director for the Prison Policy Initiative, met with the congressional redistricting commissioners May 26, to reiterate their support for the plan, even if the census bureau data presents challenges.
They agreed that it might be impossible to perfectly account for every prisoner, but that at least one other state, Maryland, had done something similar in the 2011 redistricting cycle, facing similarly imperfect outcomes.
“When you’re looking to do this kind of reallocation, don’t expect perfection. There’s going to be missing addresses, and even when you have an address, it won’t always match.” Kajstura said. “So if you’re looking at a 70% or 80% match, we consider that a success.”
Despite the imperfect nature of the prisoner reallocation, Kajstura and Gonzalez said the effort is an important step toward treating more equally the democratic rights of incarcerated people.
“The proposed reallocation of correctional populations to their home addresses makes sure that incarcerated people are treated the same way in the redistricting data that other populations are that are housed similarly,” Kajstura said.
Jessika Shipley, the lead staff member for the commissions, said she and the rest of the staff are waiting to see how the court rules on the redistricting data legislation before taking a final position on how to handle the prisoner reallocation law on a technical level. And the commissioners and the commissions’ attorneys will also need to continue to discuss the issue after the same ruling, Shipley said, in order to determine how the ruling affects compliance with redistricting-related legislation.