Constitution allows states to correct for Census misallocations of prisoners

by Peter Wagner, August 18, 2003

The Federal Constitution does not prohibit a state from adjusting the census data to count population as it wishes the prisoners to be counted:

“Although a state is entitled to the number of representatives in the House of Representatives as determined by the federal census, it is not required to use these census figures as a basis for apportioning its own legislature. (Borough of Bethel Park v Stans, 449 F.2d 575 (3rd Cir. 1971)

When the 2000 Census made mistakes and counted some prisons in empty fields or in the middle of the Hudson River, New York corrected its Census-based redistricting data by “moving” the prisons back to their actual locations. A special state census of all residents would be one way to accurately count the population of prisoners at their legal residences. Alternatively, a state could adjust the federal Census data to transfer each prisoner’s Census count from the prison town to his or her legal residence.