Senate Republicans, the state Attorney General’s office and civil rights groups were all in Albany County Supreme Court to make their case in a GOP-led lawsuit over where prisoners should be counted when state and congressional district lines are drawn.
Oral arguments were held before Judge Eugene Devine this morning, with the attorney for the nine Senate Republicans involved involved in the suit arguing that a law requiring prisoners to be counted at their last-known address rather than where they are incarcerated is unconstitutional.
“At the end of the day, the issue isn’t whether a prisoner should be counted in one place or another,” said David Lewis, an attorney for the Senate GOP. “The issue is whether the statute can make that change when the constitution says what it says.”
Lewis argued that the state constitution calls for the redistricting process, which is underway and will come up with new district lines before the 2012 elections, requires New York to follow the population figures from the U.S. Census, which count prisoners at their incarcerated location at the time of the survey.
But attorneys for the state Attorney General’s office (which is representing the Department of Correctional Services) and the NAACP Legal Defense Fund (which intervened in the suit) argued that case law allows the state Legislature to determine how to interpret the Census figures, and that counting prisoners at a location where they don’t participate in the community is unfair and discriminatory.
“This is certainly a question of internal New York governance for which the Census Bureau should not be responsible,” said Stephen Kerwin, an assistant attorney general.
Devine interrupted Kerwin twice during his initial argument, once to ask why counting prisoners at their jails is different from counting students where they attend college or nursing home patients where their home is. Those in state prisons have been sentenced to terms of at least one year, he noted.
“I guess what is troubling to me is they (prisoners) are more likely to stay where they are than the other living situations we talked about,” Devine said.
Among other reasons, Kerwin cited the fact that prisoners are involuntarily sent to their prisons as a reason for counting them differently.
Devine declined to make a decision this morning. A written decision is due in 60 days.