By Audrey Blakley
As the census comes to a close this year, the results will inevitably shift voting power across the nation. While most people are probably familiar with the census’ impact on federal funding and the electoral college, the census also has the potential to greatly impact redistricting in areas with large prison populations.[1] Because the census counts prisoners as “residents” where they are incarcerated, large prison complexes can drastically increase an area’s overall population for purposes of redistricting.[2] Prison-based gerrymandering or “prison gerrymandering” is a redistricting scheme that capitalizes on this fact, allowing the millions of incarcerated people in this country to inflate voting power in certain districts.[3] Since prisoners are disenfranchised in all but two states, awarding additional representation to voters based on prison populations is problematic; not only are prisoners excluded from the democratic process, but they also become a political tool.[4] As described by a Wisconsin prisoner during an interview with National Public Radio (NPR), “It’s almost like your body is being used.”[5] Arguably, prison gerrymandering is not “almost like” using prisoners’ bodies; it is, by definition, the use of prisoners’ bodies for political gain.
The staggering number of prisoners in the United States, around 2.3 million people, provides massive potential for abuse via prison gerrymandering.[6] Put in perspective, 2.3 million inmates would amount to a city approximately the size of Houston (the fourth largest city in the United States), which is also larger than the population of 15 individual states.[7] Further, if incarcerated Americans formed a new state, “it would have qualified for five votes in the Electoral College after the 2000 reapportionment.”[8]
Problems resulting from prison gerrymandering are especially apparent in rural areas.[9] While most prison complexes are located in rural areas, most incarcerated people are from urban areas—causing a shift of representative power from the cities to more sparsely populated districts. [10] For example, in Illinois, 60 percent of prisoners are from the Chicago area, but 99 percent of these prisoners are counted as residents outside of Cook County.[11] And in rural towns like Waupun, Wisconsin, where one in four people are incarcerated, the remaining eligible voters receive a substantial boost in representation.[12]
Prison gerrymandering also creates a severe racial bias.[13] Though African Americans make up only 12.7 percent of the U.S. population, African Americans make up 41.3 percent of federal and state prison populations.[14] Therefore, when African American and other minority inmates are transported to correctional facilities (which tend to be in rural areas composed of white, Republican voters), their home districts forfeit important representation.[15]
Supporters of prison gerrymandering might argue that inmate-heavy districts are not a problem. For instance, although the vast majority of incarcerated Americans cannot cast a vote, in theory, they are still an important part of their district representative’s constituents.[16] However, would representatives actually support policies that benefit prisoners’ interests? Because this disenfranchised group lacks the power to vote an incumbent out of office, this allows representatives to ignore a potentially large segment of their constituents without risking their job.
So far, nine states have enacted laws that prohibit prison-based gerrymandering: Maryland, New York, California, Colorado, Delaware, Nevada, New Jersey, Virginia, and Washington.[17] In these states, prisoners must be counted at their home address, not their prison address, when it comes to redistricting.[18] More significantly, because seven of the nine states did not have such laws on the books until after the last census, redistricting done in the coming year will be the first time these laws create real change.[19] Going into 2021, it will be interesting to see these new laws in action and whether they have any impact on local elections.
[2] Id.
[3] https://www.prisonersofthecensus.org/impact.html
[5] Id.
[6] Samuel Issacharoff et al., The Law of Democracy 201 (5th ed. 2016).
[7] Id.
[8] Id. (quoting Dale E. Ho, Captive Constituents: Prison-Based Gerrymandering and the Current Redistricting Cycle, 22 Stan. L. & Pol’y Rev. 355, 358 (2011)).
[9] https://www.prisonersofthecensus.org/impact.html
[10] Id.
[11] Id.
[13] https://www.naacpldf.org/case-issue/prison-based-gerrymandering-reform/
[14] Id.
[15] https://www.nbcnews.com/politics/politics-news/will-prison-gerrymandering-be-next-big-fight-n999656
[17] https://www.prisonersofthecensus.org
[18] Id.
[19] Id.
Law Journal for Social Justice 