Redistricting is in full swing across the country after the U.S. Census Bureau released data from the 2020 census. States are in the process of redrawing their congressional and legislative districts to ensure that their residents have adequate representation in the House of Representatives and state legislatures. A crucial component of map drawing is ensuring that each person’s vote carries the same weight as another’s — a principle known as one person, one vote. This requires states to draw districts that are roughly equal in population. However, the way that the census and the majority of states count their incarcerated populations goes against the notion of equal representation.
In today’s Explainer, we provide a high-level overview of how prison gerrymandering — the practice of counting individuals where they are incarcerated, rather than where they call home — actively works against the notion of equal representation that is foundational to our democracy.
How are incarcerated individuals counted in the census?
Every ten years, the Census Bureau is tasked with conducting an overview of the country’s population. It does so by counting individuals at their “usual residence” — where they live and sleep the majority of the time.
The “usual residence” rule means that incarcerated individuals are counted as residents where they are incarcerated on Census Day instead of their home community. This is despite the fact that, in comparison to individuals who voluntarily choose where they live, most incarcerated individuals have no ties to the community in which they are incarcerated and many have no intention to remain in the area upon their release.
While the census has used this method of counting incarcerated individuals since 1790, the United States’ prison population has substantially grown in recent decades, beginning in the 1970s with the “war on drugs.” This means, in comparison to before 1970 when prison populations were substantially smaller, incarcerated populations can now make up a substantial (and sometimes majority) part of a community. In turn, this directly impacts the drawing of districts, which must be nearly equal in population.
Since incarcerated individuals do not have the right to vote (except for in Maine and Vermont), a district that houses a prison can contain the same number of people as neighboring districts without prisons, but only a percentage of the prison district’s population can actually cast a vote. In this scenario, a vote cast by an individual who lives in a district with a prison carries more weight than one cast by someone who lives in a district without a prison or a district that loses residents due to high rates of incarceration. Opponents of prison gerrymandering argue that counting individuals this way can lead to a dilution of voting power among districts without prisons, while giving more weight to voters who live in districts with prisons, which violates the constitutional principle of one person, one vote.
There are also important demographic considerations to take into account when discussing prison gerrymandering. Mass incarceration disproportionately impacts people of color, leading to higher incarceration rates for Black and Latino individuals compared to their white counterparts. Since incarcerated individuals overwhelmingly do not have the right to vote, as mentioned above, they are counted towards the creation of a district in which they have no political say. This also means that representatives of districts with prisons have less incentive to adequately represent their district’s incarcerated members since those individuals cannot vote for them, but more incentive to cater to the interests of those who work at prisons since these individuals can actually vote, perpetuating mass incarceration.
Furthermore, since prisons are typically located in rural areas, prison gerrymandering often shifts political power to rural, typically racially-homogenous districts by including incarcerated individuals in their population count, drawing maps that dilute the voting power of voters residing in urban districts, which are often more racially diverse.
Prison gerrymandering affects districts across the country.
If states were to count incarcerated individuals as residents of their home community rather than at the prisons where they are incarcerated on Census Day, districts would look substantially different in many areas across the country.
Illinois provides a perfect example of how counting individuals where they’re incarcerated leads to a sizable demographic and geographic shift when drawing districts. A 2010 report by the Prison Policy Initiative, the leading group conducting analysis and advocacy around ending prison gerrymandering, found that 60% of the state’s incarcerated population called Cook County (which contains Chicago) home, yet over 90% of the state’s incarcerated population was imprisoned outside of the county. This means that Chicago’s population was reduced, while the population of rural communities housing prisons was inflated when it came time to draw new maps based on population. The report also highlights the racial components of incarceration in the state, pointing out that “although Illinois’ prisoners are disproportionately Black, they are disproportionately incarcerated in White counties: 95% of the state and federal prison cells are located in disproportionately White counties.”
Additionally, a 2019 study analyzed how prison gerrymandering impacted the makeup of Pennsylvania’s legislative districts. At the time of the study, about 264,000 Pennsylvanians were incarcerated, around 100,000 of whom were African Americans who hailed from the Philadelphia area. Pennsylvania’s past practice (the Commonwealth recently changed how it will count incarcerated individuals for redistricting) of “counting inmates as part of their prison’s district actually adds about 59 people to the average white person’s district, and takes 353 and 313 people away from the average black and Latino voters’, respectively,” according to the study, highlighting the clear racial implications of counting individuals in this way. The study’s authors found that, if individuals were counted at their previous addresses rather than where they’re incarcerated, four of the state’s House districts would be too small to adhere to the one person, one vote requirement, and four districts would be too large. Power would shift from rural areas with prisons to urban areas, particularly around Philadelphia.
The small town of Anamosa, Iowa provides another example of how prison gerrymandering can give outsized political power to individuals who happen to reside in districts with prisons. In 2005, the city was split into four wards of around 1,400 people that each elected a city council member. One of the wards housed Anamosa State Penitentiary, home to around 1,300 people who could not vote. That meant that the remaining 100 voting residents of the ward wielded the same amount of political power as the 1,400 voting residents of the city’s three other wards. When the city council member for this ward, who was elected by two write-in votes, was asked if he considered the incarcerated individuals in his ward as his constituents, he replied that “They don’t vote, so, I guess, not really.” Anamosa has since eliminated this ward dominated by an incarcerated, non-voting population.
How is prison gerrymandering fought in the courts?
Maryland was the first state to change its apportionment laws for the 2010 redistricting cycle to count incarcerated individuals at their last known address rather than where they were incarcerated on Census Day. After this law was passed, residents sued to reinstate the practice of prison gerrymandering. A three-judge panel rejected the plaintiffs’ argument that the state’s “No Representation Without Population Act” violated the U.S. Constitution, holding that the law was passed to address “the fact that while the majority of the state’s prisoners come from African-American areas, the state‘s prisons are located primarily in the majority white First and Sixth Districts” — essentially meaning that “residents of districts with prisons are able to elect the same number of representatives despite in reality having comparatively fewer voting-eligible members of their community.” The U.S. Supreme Court denied a petition seeking to overturn the district court’s decision, thereby affirming the lower court’s ruling.
The New York Supreme Court similarly upheld New York’s law ending prison gerrymandering for the 2010 redistricting cycle, finding that there was no evidence that incarcerated individuals had “substantial ties” to the communities in which they were incarcerated, nor an intent to remain in those communities upon release.
During the current redistricting cycle, Republicans in Virginia sought to prohibit the state’s new law banning prison gerrymandering from taking effect. Virginia recently passed new redistricting criteria, including changing how incarcerated individuals are counted. The petitioners challenged that new rule in a petition to the Virginia Supreme Court, arguing that counting incarcerated individuals at their last known address (as opposed to the prison in which they are incarcerated) would dilute the voting power of Republicans in rural Virginia. Opponents of prison gerrymandering opposed the petition, pointing out that the practice had a disproportionate effect on Black Virginians, who make up 21% of Virginia’s population but 56% of its incarcerated population. The Virginia Supreme Court rejected the petition, allowing the state’s new practice of counting incarcerated individuals at their last known address to be in place for the 2021 redistricting cycle.
How can states end prison gerrymandering?
Beginning in 2010, the Census Bureau released population data for “group quarters,” which include prisons. However, citing “logistical issues and conceptual issues,” the Bureau did not make the population adjustments using this data, instead leaving it up to states to determine if they wanted to perform that analysis and count individuals other than where they are incarcerated. Some states, such as Maryland and New York, used that data in the last round of redistricting to count incarcerated individuals at their last-known address.
The Prison Policy Initiative advocates for the Census Bureau to count residents at their home or last-known address for the next census in 2030, but provides suggestions for state and local governments to adopt until that change is made. They urge states to collect and use the home addresses of their incarcerated populations for redistricting purposes or to omit incarcerated individuals from geographic population counts as a whole.
There are currently 11 states that have banned prison gerrymandering in some capacity for the current round of redistricting, with other states and local governments following their lead. You can keep track of movement in your state on Prison Policy Initiative’s website.