Democracy policy issues continue to dominate the national discourse in the wake of the 2020 general election. While topics like absentee voting and campaign finance reform are drawing the most attention, prison-based gerrymandering—a consequential redistricting issue that raises pressing questions about representation—has gone largely undiscussed.
Because of the pandemic, states are still waiting for 2020 census data to draw their local, state-level, and congressional districts for the next decade. This delay offers states a unique and urgent opportunity to end prison gerrymandering and undo its anti-democratic impact on our electoral system.
Since 1790, the census has determined population distribution by counting people at their ‘usual residence,’ or the place where they live and sleep most of the time. This means that incarcerated individuals are counted as residents of their correctional facilities—not the places where they lived prior to imprisonment.
In most states, this census data is then used to apportion political jurisdictions for the next decade, despite the average length of a prison sentence being less than three years. Population change between census cycles is inevitable, and largely out of government control. However, prison populations are predictably transient, so counting them in accordance with the ‘usual residence’ policy cements unnecessary inconsistencies into political maps each decade. Nevertheless, through the early 1970s, the small scale of the national incarcerated population meant that counting prisoners this way had little impact on representation.
This is no longer the case. The national prison population has increased by 500% since 1974, and today more than 1.4 million people are incarcerated in state and federal prisons. Because of the ways in which mass incarceration policies intersect with and exacerbate broader social and economic disparities, communities of color—particularly Black Americans—are overrepresented in today’s carceral system. Despite comprising 13.4% of the U.S. population, Black Americans account for 32.9% of the state and federal prison population.
While Black and Latin0 communities make up an unequal share of the prison population, prisons themselves are disproportionately located in rural, white communities. Rural and nonmetro constituencies—which are 80% white and make up just 20% of the US population—house more than 40% of all state and federal prisons and 60% of recent prison construction.
The representational disparity this creates is stark: following the 2011 redistricting cycle, more than 160 prison districts across 31 states had incarcerated Black populations that outnumbered their non-incarcerated Black constituencies.
Furthermore, in all but two states, prisoners lose the right to vote for at least the duration of their prison sentence. When disenfranchised prison populations are counted as residents of generally unrepresentative constituencies, they artificially inflate the institutional representation of prison districts at the expense of their home communities. This phenomenon is referred to as ‘prison gerrymandering.’
The transfer of populations (and, subsequently, representational clout) from prisoners’ home communities to prison districts is significantly impactful. A recent case study of Pennsylvania determined that, if all prisoners in the state were counted in their home districts, four majority-white, non-metro state assembly districts would no longer meet the minimum population threshold to be independent districts.
Prison gerrymandering offered those areas the boost they needed to become districts by diluting the voting power and state-level representation of 263,502 urban Pennsylvanians, including 100,000 Black Philadelphia residents.
The Voting Rights Act ended racial gerrymandering—redistricting practices aimed at diluting the voting power of populations of color—decades ago. However, even though prison gerrymandering has the effect of diluting Black and Latino votes, 38 states still apportion disenfranchised incarcerated individuals in prison districts.
Prison gerrymandering undermines our core principle of “one person, one vote” by casting the composition of governing institutions across the country at-odds with the democratic cornerstone of representational equality.
To end prison gerrymandering, states must count incarcerated individuals in their home districts. Simply excluding them from prison district populations is insufficient, as prisoners’ home districts would still see their populations—and by proxy, their representation in government—diluted.
Over the past decade, there have been some promising steps toward reform. Ahead of the 2011 redistricting cycle, the Census Bureau started sending its data on prison populations to states early. In theory, therefore, states could use that data to proactively count prisoners in their home districts and undo prison gerrymandering.
Since 2011, a total of ten states have taken that step—including five in the past year alone. Their experiences indicate that ending prison gerrymandering and achieving representational equality is feasible for all states.
Take Maryland, for example, which ended the practice in 2010 by coordinating with the Federal Bureau of Prisons to organize addresses and other relevant data for all incarcerated individuals in the state. Maryland’s Department of Planning geocoded that information and submitted it to the state’s Department of Legislative Services, which then assigned incarcerated individuals to the appropriate census blocks.
Why not one hundred percent? The prevalence of prior homelessness and housing insecurity among imprisoned populations means that not all inmates can be counted at home addresses. Additionally, some prisoners are incarcerated in states where they did not previously live. In those cases, most states with anti-prison gerrymandering laws either exclude those inmates from population counts or incorporate them into the prison district’s population.
The current moment offers states a unique opportunity to take those necessary steps and re-allocate imprisoned populations—one that they should not pass up.
Under normal circumstances, states would already be finalizing the redistricting process and establishing their district maps for the next decade. Yet because of the COVID-19 pandemic, the Census Bureau won’t provide redistricting data to states until September.
Were it not for this delay, states would have already missed their window to fix this issue before redistricting begins again in 2031. The 38 states where prison gerrymandering policies are still in place need to seize this singular opportunity and end the practice without delay. Inaction now will perpetuate racial and geographic misrepresentation in our governing institutions for another ten years.
The U.S. aspires to be a representative system of public governance. Until prison gerrymandering is no longer the national norm, we will continue to fall short of that ideal.
Owen Bacskai is an intern with BPC’s Elections and Congress projects