by Sean J. Young, Staff Attorney, ACLU Voting Rights Project
Earlier this week, The New York Times published a column asserting that the American Civil Liberties Union has “seemed to take  opposite position[s]” in two voting rights disputes. This is wrong.
In the first dispute, which is pending before the Supreme Court, the question is whether states should be allowed to count all persons for the purposes of equally apportioning their legislative districts, as nearly all states currently do. The ACLU filed an amicus brief answering yes, for our country has long embraced the fundamental principle that all persons, whether or not they can vote, are entitled to equal representation. Given the democratic values of inclusion and equality built into the Constitution, we reject our opponents’ argument that this same Constitution now forces all states to exclude all ineligible voters from their population counts. Millions of non-citizens are contributing members of our communities, and the vast majority of states that currently provide these individuals the same share of representation that citizens receive should be allowed to continue doing so.
In the second dispute, which is pending in the lower courts in Rhode Island and Florida, the question is where incarcerated persons should be counted for apportionment purposes: the place where they were lived prior to incarceration, or the place where they have been involuntarily confined? The ACLU believes that for the 2.4 million individuals now incarcerated in this country, their “home” should be counted as being the place where they lived prior to incarceration. Counting these incarcerated individuals as “residents” of the district where they have been involuntarily confined artificially inflates the population of the districts in which the prison is based. This type of prison-based gerrymandering results in an unequal system of representation where, after prisoner bodies are siphoned into the district where the prison is based, their numbers are used to increase the district’s political power at the expense of the communities from which these incarcerated individuals had lived.