KAREN L. DAVIDSON; DEBBIE FLITMAN; EUGENE PERRY; SYLVIA WEBER; AMERICAN CIVIL LIBERTIES UNION OF RHODE ISLAND, INC., Plaintiffs, Appellees,
CITY OF CRANSTON, RHODE ISLAND, Defendant, Appellee.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
RHODE ISLAND [Hon. Ronald R. Lagueux, U.S. District Judge]
Normand G. Benoit, with whom David J. Pellegrino, Robert K.
Taylor, and Partridge Snow & Hahn LLP were on brief, for
Lioz, with whom Brenda Wright, Dēmos, Dale Ho, Sean J.
Young, American Civil Liberties Union, Lynette J. Labinger,
and Roney & Labinger, LLP were on brief, for appellees.
Christina Swarns, Sherrilyn Ifill, Janai Nelson, Leah C.
Aden, Coty Montag, Juan Cartagena, Jose L. Perez, Joanna E.
Cuevas Ingram, Rebecca R. Ramaswamy, Danielle C. Gray,
Samantha M. Goldstein, and O'Melveny & Myers LLP on
brief for NAACP Legal Defense & Educational Fund, Inc.,
LatinoJustice PRLDEF, Direct Action for Rights and Equality,
and Voice of the Ex-Offender, amici curiae.
Patrick Llewellyn, Aderson B. Francois, Yael Bromberg, and
Institute for Public Representation, Georgetown University
Law Center on brief for Former Directors of the U.S. Census
Bureau, amici curiae.
Howard, Chief Judge, Lynch and Kayatta, Circuit Judges.
City of Cranston appeals from an injunction, entered by the
district court, forbidding the City from holding elections
based on its 2012 Redistricting Plan and ordering it to
prepare a new redistricting plan within thirty days. The
district court held that the inclusion in the Redistricting
Plan of 3, 433 inmates of the Adult Correctional Institutions
("ACI") in the population count of the City's
Ward Six, the ward in which the ACI is physically located,
dilutes the votes of voters in the City's other five
wards in violation of the Equal Protection Clause of the
Fourteenth Amendment. The question presented is whether the
Constitution permits Cranston to count the ACI prisoners as
residents of Ward Six.
issued a stay to preserve the status quo ante in anticipation
of the September 13, 2016 primaries and the November 8, 2016
general election. We now hold that the methodology and logic
of the Supreme Court's decision in Evenwel
v. Abbott, 136 S.Ct. 1120 (2016), require
us to reverse the district court and instruct it to enter
summary judgment in favor of the City.
Rhode Island Constitution specifies that state legislative
districts "shall be constituted on the basis of
population and . . . shall be as nearly equal in population .
. . as possible." R.I. Const. art. VII, § 1;
id. art. VIII, § 1. Similarly, Cranston's
charter, ratified by the Rhode Island General Assembly in
1963, see 1963 R.I. Pub. Laws 550, "divide[s
Cranston] into six wards in such a manner that . . . all
wards shall contain as nearly as possible an equal number of
inhabitants as determined by the most recent federal
decennial census, " Cranston, R.I., City Charter §
2.03(b). "Each ward elects one representative to the
City Council and one to the School Committee, " and all
six wards collectively elect "three at-large city
councilors and one at-large school committee member."
Davidson v. City of Cranston, No.
14-91L, 2016 WL 3008194, at *1 (D.R.I. May 24, 2016).
U.S. Census "serves as a linchpin of the federal
statistical system." Dep't of Commerce
v. U.S. House of Representatives, 525 U.S.
316, 341 (1999) (citation omitted). Since 1790, the Census
has produced its total-population counts by counting each
person where he or she "usually resides, "
see Act of Mar. 1, 1790, § 5, 1 Stat. 101, 103,
and from 1850 to the present the Census has continually
refined its "usual residence" rule for determining
where to count persons. Currently, "usual
residence" is defined as "the place where [persons]
live and sleep most of the time." 2020 Decennial Census
Residence Rule and Residence Situations, 80 Fed. Reg. 28950
(May 20, 2015).
2010 Census data used by Cranston in its 2012 Redistricting
Plan, the most recent such plan, included in its population
count for the City 3, 433 inmates of the ACI. The ACI,
"which is located on a state-operated campus, "
Davidson, 2016 WL 3008194, at *2, is Rhode
Island's sole state prison. Although the ACI makes
"most requests for police services [to] the State
Police, which maintains an office at the ACI, "
"the Cranston police occasionally deliver a prospective
inmate to the prison." Id. at *2. The ACI also
depends on Cranston's roads and sewage system, as well as
on the City's fire department for emergency services.
City's population in the 2010 Census was 80, 387, and
each of the City's six wards includes approximately 13,
500 persons, with a "total maximum deviation among the
population of the six wards [of] less than ten percent."
Id. at *1. The 3, 433 ACI inmates were counted by
the City as part of the 13, 642 members of Ward Six. If the
inmates were not included, Ward Six would contain only 10,
209 persons, and the maximum deviation among the population
of the wards would be approximately thirty-five percent.
experts retained by the parties" testified that
"153 or 155 [ACI] prisoners came from Cranston at the
time of the Census, " and that "[e]ighteen of those
had pre-incarceration addresses located in Ward Six."
Id. The plaintiffs' demographic expert also
testified that "the median length of stay for those
serving a sentence at the ACI is 99 days, " and that
"[t]he median stay for those awaiting trial is three
days." Id. at *2.
inmates at the ACI not imprisoned for felonies may vote by
absentee ballot in their pre-incarceration communities,
provided that they meet that community's absentee-ballot
requirements. The Rhode Island Constitution forbids felons to
vote while incarcerated, R.I. Const. art. II, § 1, but
under Rhode Island law, non-felon inmates may vote at their
"fixed and established domicile, " the location of
which is unaffected by their incarceration, 17 R.I. Gen. Laws
§ 17-1-3.1(a), (a)(2). Taking into account testimony
that "approximately 37% of the [ACI] population is
serving a felony sentence, " the district court
estimated that only "six [or] seven inmates . . . could
be eligible to vote in Ward Six." 
Davidson, 2016 WL 3008194, at *2.
February 2014, four residents of Cranston and the American
Civil Liberties Union of Rhode Island filed a complaint
against the City under 42 U.S.C. § 1983 for declaratory
and injunctive relief alleging that Cranston's 2012
Redistricting Plan violates the Equal Protection Clause of
the Fourteenth Amendment. The plaintiffs argued that the
inclusion of the ACI inmates in Ward 6 "inflates the
voting strength and political influence of the residents in
Ward 6 and dilutes the voting strength and political
influence of Plaintiffs and other persons residing outside of
Ward 6, " thereby violating the equal protection
principle of "one person, one vote." The City filed a
motion to dismiss the complaint in March 2014, which the
district court denied in September 2014. Davidson
v. City of Cranston, 42 F.Supp.3d 325
(D.R.I. 2014). The parties then filed cross motions for
summary judgment in July and August of 2015.
2016, the district court denied the City's motion for
summary judgment and granted summary judgment to the
plaintiffs. It held that the City's inclusion of the ACI
inmates in its Redistricting Plan violated the principle of
"one person, one vote" as consistently articulated
by the Supreme Court, notwithstanding its recent decision in
Evenwel v. Abbott.
Davidson, 2016 WL 3008194, at *3-4. Rejecting the
City's argument "that Evenwel stands simply
for the constitutional propriety of drawing district lines
based on Census population data, " the district court
instead stressed "the Supreme Court's emphasis on
the conceptual basis of representational equality."
Id. at *4.
district court concluded that "[t]he inmates at the ACI
share none of the characteristics of the [historically
non-voting] constituencies [such as women, children, slaves,
tax-paying Indians, and non-landholding men] described by the
Supreme Court" and found by the Court to deserve
representation in apportionment. Id. The district
court found that the inmates have no interest in
Cranston's public schools, receive few services from the
City, and have no contact with Cranston's elected
officials. Id. The court further emphasized that the
"inmates are different from other groups of non-voting
residents of Cranston, " including ...