Between the early 1970s and the late 1990s, the number of prisoners in the State of New York soared. The majority of these prisoners were African Americans who used to live in New York City, but served their sentences in upstate rural prisons. This transfer of urban African Americans to rural prisons has had profound political implications. Although state law dictates that these prisoners have no political rights, their numbers have been crucial for the existence of upstate senate districts dominated by conservative legislators who have generally been hostile to African Americans and their interests. If not for the counting of these urban populations as residents of upstate New York, a number of state senate districts would have to be redrawn because of a lack of adequate numbers of residents, meaning that the Republican Party would be unable to dominate the New York state senate, and that downstate New York would be more powerful politically. (2)
The counting of disenfranchised African Americans as residents for political apportionment has a long history in the United States and the practice is akin to a condition that I refer to as passive citizenship. Passive citizens are residents of the United States who have no political rights but are counted by the U.S. Census and used for political districting purposes. Depending on the historical period and locality, these groups have included non-citizens, women, minors, Asians, Latinos, Native Americans, and people of African descent. Historically, the counting of disenfranchised populations for political purposes, has provided their oppressors the ability to maintain political power in state and national representative bodies. African Americans constitute the group with the longest and most extreme degree of passive citizenship in the United States. This has been the case with the South, which for more than a century derived immense political power from the numbers of African Americans living in its territory while excluding them from the polls. This has also been the case in the State of New York since the 1970s where upstate rural districts have benefited from the longer sentencing of downstate urban people, since prisons have provided jobs to upstate areas and also political power.
This paper examines how African Americans have been marginalized as citizens in the State of New York since the early 1970s. The incarcerations of a large number of African Americans in New York and the long duration of their terms in prison are the byproduct of political decisions that were used to consolidate the power of conservative political entrepreneurs. Though based on statutes that have been in place for centuries, the political disenfranchisement of prisoners in New York is at odds with the Voting Rights Act of 1965 (VRA) and its subsequent amendments. Federal courts have refused to fully address this question, claiming that the U.S. Congress did not specifically include prisoners and parolees in the VRA and that it should be up to the U.S. Supreme Court to invalidate state laws that disenfranchise felons. Moreover, federal and state courts, the New York State Constitution, and New York Election Law have submitted that prisoners cannot become residents of the area where their prison is located and that they retain the residency of the area where they used to reside before their incarceration. However, the courts have refused to directly remedy the situation of counting these same prisoners as residents of the rural districts where their prisons are located, claiming that it is customary for states to use the figures of the U.S. Census to draw districts. In almost every legal challenge regarding the disenfranchisement of African American citizens in New York, the courts have sided with the states' rights doctrine, which has historically functioned as a mechanism that prolongs racial discrimination. (3)
AFRICAN AMERICANS AND PASSIVE CITIZENSHIP
Efforts to make African Americans passive citizens in the United States can be divided into four historical periods. …