Newly released Census data makes it possible for New York's prisoners to be counted at their home address rather than their jail cell. But internal divisions in the state redistricting committee and a lingering lawsuit leave the reapportionment process in doubt.

Last year, Governor David Paterson signed a law requiring incarcerated individuals be counted at their last known address for redistricting purposes. Most criminals come from downstate in the New York City area, but go to prison upstate, where most of New York's correctional facilities are located. This had the effect of siphoning populations from Democratic districts and packing them into Republican ones, making them look more populous than they would otherwise.

The new law corrects that distortion with another distortion: those in charge of redistricting are now required to sift through Census data, find the last known address of all the nearly 60,000 prisoners in New York, and draw state legislative districts based on the new allocation.

The redistricting process officially began last week, when the six-member Legislative Task Force on Demographic Research and Reapportionment (LATFOR) had its first meeting. With the release of the 2010 Census Summary File for New York on July 14, the committee now has all the data necessary to reapportion prisoners.

But it's uncertain that they will. Several Republican State Senators, all from upstate districts with prisons, have filed a lawsuit alleging that last year's law violates the state constitution. Jack McEneny, a Democratic Assemblyman and LATFOR co-chair, has said that until the lawsuit is settled his committee will continue to design a redistricting plan the old-fashioned way, the one that counts prisoners where they're incarcerated. 

Where It Matters

The data shows that the three State Senate Districts with the highest population of incarcerated adults (and the highest per capita incarcerated population, as well) are districts 45, 34, and 59.

Senate District 45 has the highest population, with 13,002 people in correctional facilities for adults out of a total population of 306,856. Senate District 45 includes all of Clinton, Franklin, Essex, Hamilton, Warren and Washington Counties. The district has been represented since 2002 by Senator Betty Little, a Republican who also ran on the Conservative and Independent Party line. While the number of Democrats has increased somewhat in the last decade, the district remains heavily Republican.

District 34 represents parts of the Bronx and Westchester counties, including Woodlawn, Pelham Bay, City Island, Throgs Neck, Eastchester, Pelham, as well as parts of Mount Vernon, Yonkers and New Rochelle. The district is is majority Democratic and represented by Senator Jeffrey Klein, a Democrat. 

District 59 encompasses the northern county of Wyoming, as well as parts of Erie, Livingston and Ontario Counties. Republican Patrick Gallivan has represented the 59th District since 2010. While the district is majority Republican, the number of Democrats enrolled to vote is increasing and the margin between the two has become smaller in the last ten years.

Bound by Law

State Senator Martin Dilan, fellow Democrat and LATFOR member, took issue with McEneny's intransigence, releasing a 5-page memo to the committee stressing that they should adopt the changes in the new law regardless of the pending legal challenge.

"LATFOR is bound by this law, and does not enjoy the discretion to ignore it or delay its implementation," Dilan wrote. "Absent an order from the court, LATFOR does not have the authority to proceed as though it had been enjoined from executing the law."

In the same memo, Dilan said that his staff could provide the committee with a "determination of the required subtractions." It's something of an ultimatum: either count the prisoners where they came from, or don't count them at all.

"To really get at what the intent of [the law] would be, it's to geocode those prisoners," said Graham Parker, a spokesman for Senator Dilan. Geocoding is the process by which prisoners are rebranded as residents of their home counties. "You want to go through and reassign those people. If you can't do that for any reason, take those prisoners out of the population. It's one or the other."

Fewer Residents Means Less Representation

Not counting them at all would still sap Republican districts upstate of dozens of thousands of "residents," but they wouldn't be added to downstate population totals. According to Parker, that's still in compliance with the law, which states that "no person shall be deemed to have gained or lost a residence, or to have become a resident of a local government" just because they're incarcerated in a particular place.

Subtracting the prison populations from upstate brings several State Senate and Assembly districts below the minimum population requirements, which would force consolidation and likely result in fewer Republicans in the legislature.

Senator McEneny and the other members of LATFOR could still try and ignore the law, citing the ongoing case, but there's also the chance that anything LATFOR comes up with will be moot once it gets to Governor Cuomo. Following the committee's first meeting on Thursday, Cuomo stated publicly that he would veto lines that looked partisan and weren't drawn by an independent commission. Cuomo's proposed legislation instituting an independent redistricting commission stalled in the Republican-controlled State Senate earlier this year; LATFOR is not who the Governor wants in control of the process.

Former Mayor Ed Koch, whose group NY Uprising has campaigned aggressively for redistricting reform, is calling on the Governor to hold a special legislative session in Albany to resurrect the bill. The regular legislative session ended in June after a week-long extension in which several other controversial bills were passed.