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New report offers solutions to RTM dilemma

October 30, 2013

A new report, released today by an Easthampton, Mass.-based think tank, finds that 17 percent of Walpole’s Precinct 5 Town Meeting delegation is directly attributable to the non-voting prison population at MCI-Cedar Junction – an issue the report suggests that town leaders can solve simply by using a different interpretation of the town charter to apportion RTMs.

The report, researched and written by Aleks Kajstura at the Prison Policy Initiative, found that Walpole is one of seven communities in Massachusetts with a Representative Town Meeting that counts prisoners as residents for the purpose of dividing RTM members by the population in each precinct. The other towns are Billerica, Dartmouth, Dedham, Framingham, Ludlow, and Plymouth. Walpole and Framingham both have state prisons, while the other towns have county correctional facilities.

MCI-Cedar Junction currently holds 482 prisoners, meaning that Precinct 5, where the prison is located, gets a bump of three extra RTMs. Precinct 5 has a total of 18 RTMs with those three included. Kajstura said that this boost unfairly gives extra influence to Precinct 5 voters, who get more representation for fewer actual residents. Under state law, prisoners are not allowed to vote and, because of their incarceration, don’t typically use town services.

The Town Clerk is required by the town charter to conduct an annual re-apportionment in February “according to the number of inhabitants” in each precinct. Town Counsel Kopelman & Paige advised Town Clerk Ron Fucile and Selectmen earlier this year that prisoners are legally considered “inhabitants” of the community.

Kajstura noted in her report that all six of the other towns, like Walpole, “have charters or bylaws that use the word ‘inhabitant’ in describing precinct populations.” But she suggested in her report that Town Counsels in those communities should re-interpret the meaning of the word “inhabitant.”

“Our analysis doesn’t support the concern that this language is a barrier to avoiding prison gerrymandering,” she wrote.

Kajstura 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.

Kajstura said town officials do not set out to deliberately count prisoners in RTM apportionment, but feel bound not only by the confusion of the word “inhabitant” but also by a lack of guidance from the Secretary of the Commonwealth’s office, which provides technical mapping assistance and guidance on re-precincting. She faults that office for focusing more on “the precincts’ role in forming state legislative districts, rather than ensuring the precincts fulfill local needs.”

Kajstura also wrote that her research “suggests that prison gerrymandering became a problem in Massachusetts local governments largely because the incarcerated populations included in the reprecincting data simply went undetected.” That’s partly because the once-a-decade U.S. Census counts prisoners as part of the town’s census – an often-overlooked fact.

Kajstura said that besides re-interpreting the word “inhabitant” in their town charters, local officials in the seven communities that are affected can urge their legislators to support a resolution (S 309/H 3185) in the legislature urging the Census Bureau to count prisoners only in their original residence.

“Counting incarcerated people at their home addresses in the decennial Census would solve the problem of prison gerrymandering across all 50 states,” Kajstura wrote.

If Walpole were to stop counting Cedar Junction in its Precinct 5 population, Kajstura said Precincts 6, 7, and 8 would each gain one RTM.

This might be the perfect time for Walpole officials to re-apportion without counting the prison. There are currently three vacancies in Precinct 5’s RTM delegation, with Joanne Muti, Kevin Muti, and Deborah Burke all resigning their seats within the last six months. Since Precinct 5 would stand to lose three RTMs anyway, no current RTM would be forced out of office, potentially making a change more politically palatable.

Kajstura said she plans to reach out to Fucile soon, to discuss the issue in time for the February re-apportionment.

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