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Studying the Cedar Junction RTM dilemma

September 23, 2013

Walpole’s current practice of counting prisoners as residents of Precinct 5 for RTM apportionment will soon be included in a new study on prison gerrymandering from a nationally-respected Massachusetts think tank.

The Prison Policy Initiative, a non-profit, non-partisan public policy think tank based in Easthampton, Mass. that examines how counting prisoners in censuses distorts political influence, and publicly advocates for drawing political districts so that they do not include prisoners as residents, is currently in the process of putting together a study on how prisons affect Representative Town Meeting forms of government, as in Walpole.

Even though prisoners at Cedar Junction are not eligible to vote and likely never even see the streets of Walpole, the town currently counts prisoners at MCI-Cedar Junction as inhabitants of Precinct 5, allowing the precinct’s non-prison residents to have greater representation in Representative Town Meeting than if there were no prisoners. As a result, the precinct has slightly greater clout.

The town charter states that all 150 Walpole RTMs must be apportioned “according to the number of inhabitants” in each precinct. In April, Lauren Goldberg, representing the town’s legal counsel Kopelman and Paige, advised Selectmen and Town Clerk Ron Fucile that prisoners at Cedar Junction are considered “inhabitants” of the town for the purposes of the apportionment.

Goldberg noted that the Mass. General Laws use the term “resident” and “inhabitant” interchangeably, indicating that prisoners residing in Walpole, even if only temporarily, are technically also “inhabitants.” Goldberg also stated that someone can technically be an “inhabitant” of more than one community, as a prisoner would be, even though they can, under the law, only have one “domicile” (permanent residence) for voting purposes.

However, Goldberg also indicated that her interpretation of the charter might not be an open-and-shut issue, and suggested that the issue should be studied by a Charter Review Committee. “A different analysis may be applicable…if the question is whether it ‘makes sense’ for persons confined to MCI Cedar Junction to be counted for purposes of apportioning Town Meeting Representatives,” Goldberg wrote in her April letter to Selectmen. It might not make sense to count them, Goldberg said, because prisoners can not vote, by law.

But Peter Wagner and Aleks Kajstura from the PPI noted that a provision of the Mass. State Constitution states that “to remove all doubts concerning the meaning of the word ‘inhabitant’ in this constitution, every person shall be considered as an inhabitant, for the purpose of electing and being elected into any office or place within this state, in that town, district or plantation, where he dwelleth, or hath his home.” A 1974 Mass. Supreme Judicial Court advisory opinion stated that this “constitutional definition has long been interpreted to mean that a person shall be considered an ‘inhabitant’ of the place where he is domiciled … the words ‘inhabitant’ and ‘inhabitancy’ have generally been regarded as synonymous with the words ‘domiciliary’ and ‘domicil.'”

The Mass. SJC’s 1974 advisory opinion also stated that “a census that determines the place of which a person is an inhabitant on the basis of where he or she lives and sleeps most of the time will not satisfy the requirement of the Constitution of the Commonwealth that a person be assigned as an inhabitant to the place of his or her domicile.”

The Mass. SJC also ruled in the 1977 court case Dane vs. Concord Board of Registrars and 1978 court case Ramos vs. Norfolk Board of Registrars that prisoners are presumptively residents of their home districts for the purposes of voting. In 1983, state law officially barred prisoners from adopting their prison address as their residence, even if they never planned to return home. And in 2000, prisoners officially lost the right to vote in Massachusetts.

Wagner said that the PPI’s research has shown that Walpole is not the only prison host community in the state that includes prisoners in their RTM apportionments. Framingham, for example, includes prisoners in their count, even though town officials there have said otherwise. Dartmouth, which is home to two county correctional institutions and an immigration detention facility, also counts their prison population in their RTM apportionment.

The state’s Elections Division generally includes prisoners in their calculations when drawing up draft precinct maps for cities and towns.

Technically, Walpole’s 2010 census – with 24,070 residents – isn’t correct, because it includes the prison’s 690 inmates. The U.S. Census’ standard practice is to include prisoners in their population counts.

The PPI is pushing the Mass. state legislature and other states to pass legislation similar to those of Maryland, New York, California, and Delaware that will fix the problem of prison-based gerrymandering in time for the 2020 census.

The town charter requires that Town Clerk Ron Fucile annually conduct a re-apportionment of Town Meeting Representatives. Precinct 5 currently has one RTM vacancy, with Deborah Burke’s relocation out of town, and two other Precinct 5 RTMs, Joanne and Kevin Muti, plan to resign their seats after the upcoming Fall Town Meeting.

Since there will be three vacancies anyway, Fucile would not force any current Precinct 5 RTMs out of office if he were to stop including prisoners in Precinct 5’s population in next February’s re-apportionment. That might make it easier for Precinct 5 residents to stomach the change.

The PPI plans to reach out to Fucile to discuss the issue, as part of their study.

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