Counting Prisoners to Distort the Vote, Undermine Democracy

As our report explains, "prison-based gerrymandering" is a practice whereby many states and local governments count incarcerated persons as residents of the areas where they are housed when election district lines are drawn. This practice distorts our democratic process by artificially inflating the population count-and thus, the political influence-of the districts where prisons and jails are located. As a result, everyone living outside of those districts suffers a dilution of their voting power.

The easiest way to understand how prison-based gerrymandering undermines the integrity of our political process is to look at how prisons affect local elections. Most (in)famously, during the 2002 election cycle, the town of Anamosa, Iowa was divided into 4 City Council wards of about 1,370 people each. Ward 2, however, contained a state penitentiary that housed over 1,320 prisoners. Thus Ward 2's actual population was comprised of fewer than 60 non-incarcerated residents.

Anamosa's districting plan (pictured) therefore granted the approximately 60 constituents of Ward 2 the same level of political representation accorded to over 1,300 people living in each of the other wards. Remarkably, a man was elected to Anamosa's City Council from Ward 2 on the strength of two write-in votes.

The Anamosa example and others like it across the country make a mockery of the principle of "one person, one vote." Articulated by the Supreme Court in the seminal case Reynolds v. Sims, the one person, one vote principle requires that election districts be comprised of roughly the same number of constituents so that every person receives the same level of representation. As Anamosa illustrates, prison-based gerrymandering contravenes that basic principle of political equality.

Unfortunately, the Anamosa pattern has been replicated throughout the country, and at all levels of government - from school boards to city councils to statewide legislatures. It is a problem that is not limited to any particular region, and that distorts democracy for both rural and urban communities alike.

Undoubtedly, however, the communities that are the most thoroughly victimized by prison-based gerrymandering are urban communities of color-a result of the racial discrimination that infects our nation's criminal justice policies.

African Americans are 12.7 percent of the general population, but are 41.3 percent of the federal and state prison population; nearly 9 percent of all African-American men in their twenties or thirties lives in prison. But members of the disproportionately minority incarcerated population are largely held in areas that are both geographically and demographically far removed from their home communities: in New York, for example, approximately 77 percent of all prisoners are African-American or Latino, but 98 percent of all prison cells are located in disproportionately white State Senate districts. Nationally, rural communities make up only about 20 percent of the U.S. population, but it is estimated that 40 percent of all incarcerated persons are held in facilities located in rural areas.

Thus, in state legislatures across the country, prison-based gerrymandering dilutes minority voting strength and transfers political power from urban communities of color to predominantly white areas. This reliance for political power on an imported, captive, and disfranchised minority population is, unfortunately, all-too reminiscent of the infamous three-fifths compromise.

The unfairness of this phenomenon, as a practical matter, is not lost on most people. And legally, it raises substantial concerns under both Section 2 of the federal Voting Rights Act and the United States Constitution. But some argue that incarcerated individuals should be counted where they are physically present because communities that host prisons are required to provide services to inmates.

The reality, however, is that incarcerated individuals are not residents of the communities in which they are housed, as nearly every state has a constitutional or statutory provision stating that a person does not gain or lose residence by virtue of incarceration. In New York, for instance, Article II, Section 4 of the State Constitution provides: "For the purpose of voting, no person shall be deemed to have gained or lost a residence, by reason of his or her presence or absence . . . while confined in any public prison." If incarcerated persons are not residents of the places where they are held, it hardly makes sense to consider them constituents there.

And while communities that host prisons are clearly entitled to the resources that are necessary to run large prisons (and already receive an economic boost in the form of prison-related jobs), there is no reason for those communities to also receive an enhanced voice in the political process.

The rules on residency comport with basic common sense: incarcerated individuals cannot integrate into the surrounding community or build enduring ties there. They cannot utilize local services such as parks, libraries, or roads. They are not there voluntarily, and can be moved at any time at the discretion of the state. They cannot participate in local civic life - and, tellingly, in the two states where prisoners can vote without limitation (Maine and Vermont), they do so by absentee ballot in their home communities, not in the prison districts. They are not "constituents" of those districts in any normal sense of the word.

Earlier this year, Maryland became the first state in the country to definitively reject prison-based gerrymandering for the upcoming redistricting cycle, by passing the "No Representation Without Population Act."

Other states should enact similar legislation and take advantage of the Census Bureau's recent decision to release data on prison populations in time for the next redistricting cycle. For state and local governments, doing so would not only mark a reaffirmation of principles of democracy and political equality, it would also eliminate a potential source of legal liability in the always-contentious redistricting process.

For more information on prison-based gerrymandering, please read our full report, or visit our website, or visit the websites of our partners in the campaign to end prison-based gerrymandering: the Prison Policy Initiative, Dēmos and the Brennan Center for Justice.

[image via Prison Policy Initiative]