Albany Judge Upholds Law on Counting Prisoners

New York Law Journal

December 5, 2011

An Albany judge has upheld a state law that counts inmates, for legislative reapportionment purposes, in their home community rather than the district in which they are incarcerated. If upheld on appeal, the ruling would apparently diminish the populations of several upstate, generally Republican districts and increase the populations in several urban and generally Democratic districts.

Supreme Court Justice Eugene P. Devine rejected challenges to the constitutionality of the 2010 statute enacted during a brief period when Democrats controlled both houses of the Legislature. Proponents of the law argued that inmates, who are ineligible to vote, were unfairly boosting the populations, and thus legislative representation, of rural counties where most of the prisons are located. But several Republican senators and citizens challenged the statute.
In Little v. New York State Task Force on Demographic Research and Apportionment, 2310-2011, Justice Devine said that even if the law “is the product of a power play by Democratic lawmakers to usurp the strength of the Republican Party,” the law survives constitutional scrutiny. “Though inmates may be physically found in the locations of their respective correctional facilities at the time the census is conducted, there is nothing in the record to indicate that such inmates have any actual permanency in these locations or have intent to remain,” he said.
Attorney General Eric T. Schneiderman, whose office defended the law that he championed as a state senator, called the ruling a “victory for fundamental fairness and equal representation.” The decision “applies a fair standard to the drawing of state legislative districts and makes it easier for counties to do the same by providing them with an accurate data set,” he said in a statement. David L. Lewis of Lewis & Fioire, counsel for the Senate plaintiffs, said he is considering requesting a direct appeal to the Court of Appeals.

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