Since you asked: do opponents of prison gerrymandering want voter-only districting?

No. We oppose voter-only districting — even our recommendation that incarcerated people be excluded in some contexts lends no support to the practice of voter-only districting.

by Ginger Jackson-Gleich, December 28, 2020

Who should be counted for redistricting purposes? Since the 2010 redistricting cycle, numerous events — from the Supreme Court’s decision in Evenwel v. Abbott to President Trump’s efforts to inquire into citizenship status in the 2020 Census — have drawn attention to this important question. For people interested in our work, an additional query often follows: how exactly should disenfranchised incarcerated people be counted toward district populations?

The fact that questions persist about our recommendations for counting incarcerated people is not surprising: journalists have reported our position inaccurately; advocates for voter-only districting have tried to twist and appropriate our words; and the exclusion of incarcerated people (who generally cannot vote) is one of the solutions to prison gerrymandering that we promote in specific, limited contexts. As a result, some people assume that opponents of prison gerrymandering support voter-only districting.

In advance of the upcoming redistricting cycle, we’d like to make our position on this issue clear: we believe that all persons, whether or not they can vote, are entitled to equal representation and that everyone should be counted for purposes of redistricting. The key concern with prison gerrymandering is not whether incarcerated people should count, but where they should count. Accordingly, districting based on the eligible-voter population is not an approach that we support.

As noted above, we suspect that some of the confusion surrounding this topic arises from our recommendation that incarcerated people be excluded from redistricting data when cities or counties draw local legislative districts around correctional facilities.

To understand why such exclusion does not amount to an endorsement of voter-only districting, it is necessary to see that prison gerrymandering causes two distinct problems: it undermines equality of representation between coequal legislative districts and it siphons political power from incarcerated people’s home communities. Both issues arise from the way the Census tabulates incarcerated populations: it allocates people to their temporary prison addresses, rather than counting them at home (despite the fact that they remain legal residents of their home addresses while incarcerated).

Just like state governments, local jurisdictions — such as cities and counties — have districts that are required to contain equal populations in order to ensure equal representation by local elected officials.

However, as one federal judge has beautifully explained, city councilors, county commissioners, and other local elected officials “can’t make decisions that meaningfully affect” the people incarcerated within their districts, nor can the governing bodies to which those representatives belong do anything for such populations, whose lives are generally governed by state (or even federal) authorities. In other words, unlike other non-voter populations (like children or permanent residents), there is no “representational nexus” between local elected officials and the people detained within their districts. As a result, excluding correctional facilities when local district lines are drawn ensures that districts will have equal numbers of actual residents — and therefore that residents will have truly equal representation.

Unfortunately, local jurisdictions cannot solve the problem of prison gerrymandering in its entirety. While they can avoid creating city or county legislative districts with unequal representation, they cannot — on their own — stop the transfer of political power from people’s home communities. This is because local jurisdictions can refuse to pad their own districts with prisons (by excluding correctional populations prior to drawing district lines), but they cannot restore incarcerated people to addresses outside of their own boundaries. Accordingly, local jurisdictions cannot singlehandedly end the siphoning of political power from incarcerated people’s home communities.

Importantly, the state-level solution is different from the local one; at the state level, exclusion is neither necessary nor beneficial because states can count incarcerated people at their home addresses statewide and thereby solve both parts of the prison gerrymandering problem. Thus, for local jurisdictions, we recommend excluding incarcerated populations prior to redistricting (a partial solution being better than no solution), while our ultimate hope is that states and the Census Bureau will implement the solutions necessary to solve the problem completely.

For all of these reasons, we continue to advocate that using total-population baselines (not eligible-voter populations) is the best method for redistricting, and that incarcerated people should be counted at their home addresses. This total-population approach (sometimes described as the pursuit of “representational equality”) ensures both that elected officials represent the same number of constituents (including those — such as children, non-citizens, and incarcerated people — who cannot vote), and also that officials have a meaningful representational connection to the people they purport to represent. By contrast, efforts to ensure “voter” or “electoral equality” limit representation to only those individuals eligible to cast ballots.

As part of our collection of updated resources for advocates, we have added a fact sheet that addresses local redistricting (and the prison gerrymandering solutions available to local governments). Readers may also wish to explore our other resources for the 2020 redistricting cycle, including a roundup of legislative solutions, as well as an explanation of why prison gerrymandering does not impact federal or state funding allocations.

Building momentum against prison gerrymandering

Diverse support for ending prison gerrymandering builds momentum for action nationwide.

by Aleks Kajstura, December 18, 2020

Prison gerrymandering can feel like a complex, political quirk. Talking about Census Bureau policy and how the Bureau interprets its own sometimes-arcane “residence rules” can feel like getting deep in the weeds of policy. But prison gerrymandering is not a fringe issue. It has real-world implications for representation and public policies — and there are proven solutions. Since the Prison Policy Initiative and others have been working to solve this problem, we have seen growing public support and reform legislation passed around the country.

The problems stem from the way the Census Bureau conducts its counts. When counting the population every ten years, the Bureau tabulates incarcerated people as if they were residents of the locations where they are confined, even though they remain legal residents of their homes. When the resulting data is then used to draw legislative districts, all of a state’s incarcerated persons are credited to a small number of districts that contain large prisons. This has the effect of enhancing the representation of those districts and diluting representation of everyone else in the state, distorting policy decisions statewide. And since incarcerated populations are disproportionately Black and Latino, minority voting strength is diluted in the process. (Although this affects representation, it fortunately does not have major funding implications, for various reasons.)

Although prison gerrymandering remains a serious issue in most parts of the United States, there is a growing movement to solve it, and significant progress toward reform has been made at the Census Bureau and at all levels of government across the country. States have the power to use correctional data to adjust Census population counts when drawing districts. Since 2010, nine states — Maryland, New York, Delaware, California, Washington, Nevada, New Jersey, Colorado, and Virginia — have passed legislation to do so, ensuring that districts are drawn with data that counts incarcerated people at home. And more than 200 counties and municipalities independently adjust their redistricting data to avoid prison gerrymandering.

All in all, over 30% of US residents now live in a state, county, or municipality that has formally rejected prison gerrymandering:

Additionally, where states have been unable to implement the most common solutions to prison gerrymandering, they have embraced other options available to them. For example, Massachusetts has not passed legislation, but it found another way to minimize the impact of prison gerrymandering when drawing districts following the 2010 Census, by specifically considering prison populations to ensure that the state would not accidentally (or purposely) concentrate prison populations within a small number of districts. The redistricting committee’s final report on their process devoted significant space to the prison gerrymandering problem and recommended that the Census Bureau create a national solution. The state legislature then doubled down on that recommendation and passed a joint resolution that officially calls on the Census Bureau to count incarcerated people at home. Notably, this solution is still available to any state that cannot pass legislation to count incarcerated people at home in time for the 2020 redistricting cycle.

These actions reflect strong public support for solving prison gerrymandering — and a push for the Census Bureau to change the way it counts in the first place. When the Census Bureau asked for public comment on how incarcerated people should be counted in 2015, over 99% of the 77,863 comments urged the Bureau to count incarcerated persons at their home address. And when the Bureau asked again a year later, almost 100,000 people voiced support for the change, including representatives from civil rights organizations, elected officials at all levels of government, former Directors of the Census Bureau, and citizens from across the country. The reform movement has also drawn editorial support from publications like the New York Times and the Philadelphia Inquirer.

In addition to legislative efforts and public comments, organizations and legislative bodies have shown opposition to the Census Bureau’s prison count and prison gerrymandering, by issuing formal resolutions and recommendations.

As a result of state and local governments’ push to avoid prison gerrymandering, as well as support from advocates and the public, the Census Bureau has recognized that the redistricting data it has historically provided does not meet the needs of those aiming to draw equal districts. Although the 2020 Census still counted incarcerated people as if they were residents of correctional facilities, the Bureau will be publishing prison population counts as part of each state’s redistricting data, making it easier for states and local governments to avoid prison gerrymandering.

As a record number of states and municipalities are poised to tackle prison gerrymandering during the upcoming redistricting cycle, now is the time to join the movement for change.