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Gerrymandering Denies Incarcerated People Fair Democratic Representation

The US Census counts incarcerated people as residents of prisons, not their home towns — with undemocratic results.

Prisoners from Cook County Jail check in prior to casting their votes at a polling place set up for early voting on October 17, 2020, in Chicago, Illinois.

Part of the Series

In recent years, the concept of gerrymandering has entered the mainstream political conversation — particularly as it relates to toying with voting population percentages, a strategy which Republicans have put to especially effective use. (Though it’s not exclusive to the right, and there are signs that its advantage may be starting to fray.)

Named for 18th-century Vice President Elbridge Gerry, to “gerrymander” is to bureaucratically distort the geographic boundaries of a voting district, cutting across lines of population concentrations so that, for instance, Republican voters in that district will make up a majority that was not present in the previous boundary overlay. In districts where one might expect rectangles, instead, thanks to such manipulation, boundary geometries can be warped to farcical extremes. (Gerry’s meddling with a Boston district was said to produce a map the shape of a salamander, hence the portmanteau word — a term as unwieldy and strange as the often-preposterous districts to which it refers.) The abuse of power that gerrymandering represents has been an ongoing concern, particularly as Republicans have become increasingly brazen about wheeling out the patently self-serving strategy during each once-a-decade redistricting cycle. The consequences have been far-ranging for U.S. democracy (and the lack thereof).

The United States, though, is home to injustices that extend far beyond this election-rigging. The bipartisan project of mass incarceration has swept up enormous swaths of the population, disproportionately people of color — with the result that the country now exceeds all other nations in total prisoner numbers. Until recently, that was true both of the raw number and the per-capita rate. (The latter has apparently fluctuated since a 2019-2020, partly COVID-related drop; the total-number first-place status remains in place.)

Prison gerrymandering is a distinct issue that lies at the intersection of these and other processes. It specifically refers to the lopsided voting-bloc distortions that can occur when individuals are counted as residents of the district that harbors the prison in which they are currently incarcerated, rather than their original home locality. In the current model, districts that contain prisons receive an undue boost in population, meaning that the vote of every free citizen in the district is effectively granted an outsized weighting. By extension, other territories, especially those with populations diminished by their residents’ mass incarceration in those very same prisons, now find that their democratic participation counts, comparatively, even less.

Undoing the Miscount

The nonpartisan nonprofit Prison Policy Initiative (PPI) is the most prominent organization engaged in directly combating prison gerrymandering. Since 2001, the PPI has led a nationwide campaign to put an end to the practice, alongside other significant work combating the socially catastrophic injustices of mass incarceration.

“Prison gerrymandering is a problem created because the Census Bureau counts incarcerated people in the wrong place. It counts them as residents of a prison cell, rather than their home communities,” PPI Communications Director Mike Wessler told Truthout. Counting prisoners as a prison district’s home residents in this way, first and foremost, deprives prisoners themselves of the adequate democratic representation they are due.

“[T]hey don’t have social ties to the prison community, they’re not likely to stay there when they’re released, they’re not likely to be in that prison for more than a couple years at a time, and they don’t really consider themselves members of that community,” Wessler said. “They’re not reaching out to lawmakers there to make their voice heard. The places that they feel connected to are the places they’re most likely to return to after they leave, which is their home communities: where they came from.”

This is a weighty issue of democratic rights. As the Campaign Legal Center points out, while almost all those with felony convictions are ineligible to vote (a major example of racially biased disenfranchisement in its own right), two-thirds of those behind bars in the U.S. at any given time are only in jail awaiting trial or a plea bargain. (Pre-trial detention being yet another aspect of the justice system in which injustice is, for the record, also rife.) They have not been convicted of any crime, and should retain their constitutional voting rights. And even if they are convicted, in theory, those found guilty of misdemeanors are not de jure stripped of their voting rights. But in practice, prisons make it inordinately difficult for anyone currently incarcerated to vote.

Moreover, any prisoner, even those totally deprived of the right to vote, as Wessler points out, should still be able to petition their local lawmakers for causes and otherwise participate in local democracy. “The people who are in prison — they have a right to lobby their lawmakers. But there’s a fundamental tension between the people who are incarcerated, wanting change, and the people who on paper represent them. When people in prison want prison phone rates to be addressed, or prison conditions to be addressed, or they want the probation and parole system to be improved, they’re not reaching out to the lawmaker who represents the rural prison. They’re reaching out to the politicians in their home community,” he continued.

Those local politicians are then put in a difficult position: many wish to continue advocating for their constituents. Yet constituents who are sequestered elsewhere, are unable to vote for supportive representatives or aid their campaigns. These representatives end up devoting resources to advocating for incarcerated people whom “they have strong ties to, but on paper, they don’t answer to. But they’re doing [the work of advocating for them] anyways. It creates additional burdens on those communities.” By bureaucratically confining them as constituents of the prison’s district, prisoners are denied effective democratic representation of all kinds. “Voting is an important way you interact with your government. But it’s not the only way,” Wessler said.

Disenfranchisement on Vast Scales

From the outset, the U.S. prison system already functions as an engine for the disenfranchisement, control and forced-labor exploitation of hundreds of thousands of marginalized people. Indeed, mass incarceration has replicated and reinstated many of the social functions of Jim Crow laws, and still exhibits aspects of slavery. It has merely been camouflaged in the language of crime-fighting and the drug war. In other words, the imprisoned were already on unequal footing, to put it lightly. Prison gerrymandering, while merely symptomatic of broader forces, both intentional and emergent, represents another barrier to the already beleaguered.

Wessler also pointed to some of the most flagrant examples of prison gerrymandering: the most infamous and starkly illustrative being that of Anamosa, Iowa, where a prison’s location lent just a few residents of one ward wildly outsized power. This led to one Danny R. Young’s election to the city council with “a total of two votes, both write-ins, from his wife and a neighbor,” reported The New York Times in 2008. Asked about the prisoners who make up practically the entire ward population, granting the disproportionate power that got him elected, Young said: “Do I consider them my constituents? They don’t vote, so, I guess, not really.”

As Wessler summarized the issue, which so farcically arose in Anamosa but is present in less blatant forms elsewhere, “When local governments use census data for redistricting purposes, they inadvertently give additional political clout to communities that contain prisons, at the expense of everyone else.”

Prison gerrymandering not only unduly empowers certain citizens within a prison district. The game is zero-sum: it also dilutes the voting power of other districts, in a number of ways. As Wessler put it, “[A] handful of communities that contain large prisons … are benefiting at the expense of every other community around the state. [Those negatively affected include] large urban areas, that lend a lot of their population by numbers to prisons, and it also includes smaller rural areas that have higher incarceration rates but lower population totals.”

Mass incarceration, in other words, has drained the populations from certain highly policed areas and concentrated them in disparate counties. Not only is the voting power of the areas home to prisons increased — it’s simultaneously bled from the places where high arrest rates and the drug war have depleted the voter rolls. Across a given state, because prisons are often built in rural areas, it’s often the case that the underpopulated, outweighed districts are urban, and, as a correlate, are home to more people of color.

Of course, people of color already face disenfranchisement in innumerable ways. The poll taxes and “literacy” tests of Reconstruction have given way to, first of all, gerrymandering of the normal sort — but also rolls-purging, ID requirements, and other tacitly racist voter suppression. Indeed, the right is engaged in a massive project of disenfranchisement aimed at eroding the gains of the civil rights movement and ensuring Republican victories — securing, along with those victories, by both demographic and design, the persistence of white supremacy.

But if prison gerrymandering is part of that process, it’s more akin to a secondary ramification, an unintended consequence at the intersection of disenfranchisement, social realities and a fluke of Census Bureau statistical collection. As the PPI sees it, the primary problem raised by prison gerrymandering is one of constitutionality: in particular, the way that its distortive effects can patently violate equal representation, i.e., “one person, one vote.” Famously, the postbellum Fourteenth Amendment’s equal protection clause determines that all must be considered equal in the eyes of the law.

During the civil rights movement, it was this constitutional language that served as the basis for the landmark 1964 Reynolds v. Sims Supreme Court decision under Chief Justice Earl Warren, which found that legislative representation must be allotted by votes from districts of equivalent size, within a small margin of error. It was established that the U.S. Census Bureau would furnish the data that underlies the districting decisions.

Ever since then, similar incremental advances for democracy and racial justice have been a thorn in the side of reactionaries and racists both covert and overt. Their effort to diminish minority voting and the gains of the civil rights movement has made leaps and bounds in recent years, all while the right, with utmost cynicism, holds up a puppet caricature of Martin Luther King Jr.

Bipartisan Solutions?

When it comes to the specifics of prison gerrymandering, however, the problems of the policy are not necessarily a clear matter of self-dealing. It is more of an artifact of the system than a consciously effected strategy. “I think prison gerrymandering really defies a lot of the broader political expectations that people have about how this works. We’ve seen pretty considerable bipartisan support for addressing prison gerrymandering,” Wessler noted.

He continued: “Just last year, [a bipartisan redistricting commission in Montana] unanimously passed new legislative maps that ended prison gerrymandering in the state.” A Republican-supermajority legislature then nearly unanimously passed a bill to end it in the state. The signature of a Republican governor then put prison gerrymandering, at least in Montana, to a permanent end.

That’s not to say that there aren’t politicians who are well aware of how the practice is advantageous to their interests. Asked about this possibility, Wessler responded, “I think there’s a little bit of [intentionality] behind it. Certainly, some of the folks who have opposed ending prison gerrymandering are often the people that benefit.”

“However,” he went on, “I also think there’s examples where the opposite was true. In Maryland, one of the key sponsors of a bill to end prison gerrymandering represented the prison [district]. She knew that it was just not the right way to count people. … We’ve heard similar things from legislators in other parts of the country.”

Because the PPI’s anti-prison-gerrymandering campaign relies on the strategy of encouraging local and state legislatures with both blue and red majorities to assist in undoing the imbalance, it’s to the campaign’s benefit that it remains nonpartisan, in order to find as many allies among lawmakers as possible.

Remediation Efforts

Instead, the PPI’s focus is, again, on the Census Bureau, as the most powerful and central determinant of the policy. But prison gerrymandering can also be addressed at the state-legislative level. The PPI, in collaboration with the State Innovation Exchange (SiX) has released a messaging and policy design guide to assist state legislatures in redressing efforts. Their other efforts largely consist of lobbying, petitioning and releasing reports, findings and public information, all in service of their place of leadership at the prow of a national movement.

In part thanks to the PPI’s work, there has been real momentum attained on these fronts. As the guide notes, there are now outright prohibitions on prison gerrymandering in seven states: “California (2011), Delaware (2010), Maryland (2010), Nevada (2019), New Jersey (2020), New York (2010) and Washington (2019).” The guide continues, noting that, “Colorado, Michigan, Tennessee, and Virginia have addressed prison gerrymandering at the local level, either by barring or discouraging county and local governments from counting prison populations when drawing local districts (e.g., for town or school board elections).”

Another key point, says Wessler, addresses one of the most cited objections: changing the way that prisoners are tracked by the census will not affect the apportionment of funding. Funding distribution policies are calculated based on different data, often more fine-grained and able to account for prison population discrepancies. Per a PPI fact sheet: while funding disbursement does “rely on population totals, it is just one of many components taken into consideration. … [P]overty measures play an important role in funding allocation, but federal poverty data does not include incarcerated people.” This is only one aspect of the complex and multidimensional earmarking formulas in use.

Just as the PPI website touts, Wessler reiterates that there has indeed been significant progress, and agrees that there is reason to be hopeful about halting prison gerrymandering’s ill effects, especially from the top down: by changing Census Bureau policy for the 2030 census. “As of today, there are over 200 local governments, city and county governments, that have tackled this issue and are working to correct the census data to count people in their home communities. All told, about 50 percent of the country now lives in a place that has ended prison gerrymandering or has taken some other action on it,” he said.

“We think, as we look toward the 2030 census, there’s a strong argument for the Census Bureau to finally change how it counts incarcerated people. Stop putting the onus on city, county and state governments to correct the Census Bureau’s mistake,” Wessler concluded.

Prison gerrymandering represents something rare among the extreme, interlocking complexities of modernity: a single hinge point, via which a comparatively simple change can exert outsize positive impact. Its reversal would be a welcome addition, at least, to the project of reinforcing what remains of democratic rights.