NAACP Sues State For ​“Prison Gerrymandering”

The NAACP is suing the state of Connecticut with hopes of changing a practice here — and possibly throughout the country — that disproportionately impacts African-Americanns and Latinos when it comes to counting prisoners for purposes of political representation.

Brad Berry, general counsel for the 109-year-old organization, and state NAACP President Scot X. Esdaile stopped by Yale Law School Thursday to announce the lawsuit filed in the names of five Greater New Haveners: Justin Farmer, Germano Kimbro, Conley Monk Jr., Garry Monk, and Dione Zachery.

The civil rights organization is working with the law school’s Rule of Law Clinic to bring the suit, which has been filed in U.S. District Court in the District of Connecticut.

The lawsuit claims that all five people — residents who have been incarcerated or are related to someone who has been incarcerated — have been harmed by Connecticut’s practice of counting incarcerated people in the places they are locked up instead of the place they reside, for the purposes of redistricting. The suit argues that at least five state House of Representative districts and possibly as many as nine districts — Districts 5, 37, 42, 52, 59, 61, 103, 106, 108 and Senate District 7 — have an inflated amount of political power because of this practice.

The suit calls this practice ​“prison gerrymandering. The suit alleges that the practice provides a political advantage to the predominantly white communities where many of the state’s prisons are located at the expense of the significantly blacker and browner urban centers where many of the incarcerated come from and return to after they are released.

The NAACP is asking the court to declare the practice an unconstitutional way to calculate reapportionment. Gov. Dannel P. Malloy and Secretary of the State Denise Merrill are the defendants in the lawsuit.

“We’re reviewing it,” said Malloy spokesman Leigh Appleby.

Merrill issued a statement noting that she plays ​“no role in redistricting” she will take a ​“close look at the complaint.”

“As Secretary of the State, I have consistently supported legislation that would have ended this practice in Connecticut, and I continue to believe that people who are in prison should be counted where they resided prior to their incarceration, and not in the prison in which they are incarcerated,” she stated. ​“Prison gerrymandering unfairly inflates the size of some districts at the expense of others, and ending the practice will give a more accurate population count of our urban communities.”

Berry called the complaint the first in what he hopes will be more lawsuits brought by the NAACP challenging prison gerrymandering throughout the country, which he said, ​“dilutes the electoral and representative strength of communities of color.”

“The lawsuit is a first of it’s kind because it’s the first time the practice of gerrymandering has been challenged in court on a statewide basis,” he said. ​“Connecticut may feel picked on here but Connecticut shouldn’t feel picked on.”

Ashley Hall, a law student intern in the Rule of Law Clinic at Yale Law School, said a number of states were looked at for a possible suit because the number of states that use the practice. Connecticut, she said, had some particularly stark differences in districts where prisoners are incarcerated and those where they are not. In some districts that are home to prisons in the state, the population would be 15 percent smaller if it did not count its prison population.

“Because their individual votes count for less, individual Plaintiffs, NAACP members, and their fellow residents must invest greater energy to elect representatives of their choice. Plaintiffs in District 97 have over 15% more doors to knock on, voters to call, and mailings to send if they wish to have an equal influence over the political process as residents of District 59. Because of this increased need for resources, their campaign donations go less far,” the complaint notes.

“Because their district is overpopulated in this manner, the influence of individual Plaintiffs’ and NAACP members over their representatives is also diluted. For example, District 97 Representative Al Paolillo has 3,751 more constituents than District 59 Representative Carol Hall. Thus, to serve his full body of constituents, Rep. Paolillo must fully listen and respond to 15% more people despite working with the same level of funding, staff, and hours in the day.”

Read the full complaint here.

Hall said an existing a U.S. Supreme Court standard identifies any deviation above 10 percent as a cause for concern that people might not be proportionately represented.

There is some hope on the NAACP’s part that this case will be resolved at the state level and in fact, does not go all the way to the U.S. Supreme Court, which is expected to continue to skew more conservative now that the Trump administration will have another opportunity to appoint a new justice.

“Every case is different,” Berry said of the current state of the country’s highest court. ​“While there have been some rulings from the Supreme Court that have been disappointing to the civil rights community we are very hopeful that the courts will see the injustice of the practice that we are challenging.

“It seems obvious to us if you ship prisoners upstate — and the state makes the decision where the prisons are located — and then proceeds to use this fiction that they are somehow residents of that area,” that you knowingly engaging in a practice designed to disenfranchise people, Berry added.

Esdaile pointed out that despite the Malloy administration’s ​“second chance society” efforts to lower the prison population, a disproportionate number of the state inmates are African-American and Latino. Their pre-incarceration address is often in Hartford, Bridgeport, or New Haven, or the immediate suburbs of these major cities.

He also noted that the NAACP has unsuccessfully pressed the Connecticut General Assembly, which decides how to carry our reapportionment, to stop the practice. Hall said that there have been a number of legislative attempts since 2010, including one in 2011, another in 2013, and most recently in 2016.

“The state has not done the right thing on this particular issue,” Esdaile said. ​“Our only course of action is to take this to the courts.”

Plaintiff Kimbro, a formerly incarcerated New Havener, equated prison gerrymandering with voter suppression in its effect.

“We’re asking for fair representation for our community, for our loved ones and family who have been incarcerated,” said Kimbro, who now is a criminal justice reform advocate. ​“We’re coming back here with little to no resources to establish ourselves, nor do we get advocated for whle we’re incarcerated for the things we need to re-establish ourselves.”

He said he challenges all the Ivy League law schools with clinics to take up the issue of prison gerrymandering in other states.

“It’s great that Yale has stepped up to the plate and recognized this issue but this is not a New Haven issue,” he said. ​“It’s something that is going on across the country.”