How many states have ended prison gerrymandering? About a dozen*!

*Our new chart details how to quantify the progress made across the country.

by Andrea Fenster, October 26, 2021

About a dozen states have ended prison gerrymandering. However, the precise number depends on the details. Prison gerrymandering can occur at different levels of government, be solved by different bodies of government, and be eliminated or mitigated through different methods, which can make it somewhat confusing to measure where prison gerrymandering has ended. We have compiled this overview to the progress being made to eliminate prison gerrymandering across the country.

While many people are familiar with redistricting at the Congressional level, these districts are often so big that prison populations rarely affect them. For that reason, Congressional redistricting is not discussed here.

How many states have taken action against prison gerrymandering? 16 states.

California, Colorado, Connecticut, Delaware, Illinois, Maryland, Massachusetts, Montana, Michigan, Nevada, New Jersey, New York, Tennessee, Virginia, and Washington have all taken some action to reject prison gerrymandering.

However, these states have taken a variety of actions that affect redistricting in different ways. These differences are important, as they paint a picture of the road still ahead. No matter how you look at it, though, as of today, 47% of the country lives in a state that has formally rejected prison gerrymandering, adding to the growing body of evidence that it is time for the Census Bureau to count people at home.

How many states have taken any action to avoid prison gerrymandering in state-level redistricting? 14 states.

This count includes the 11 states below who passed legislation to formally end prison gerrymandering at the state level, as well as states that have taken other actions to avoid, but perhaps not permanently end, prison gerrymandering.

For example, Pennsylvania did not enact legislation, but the redistricting committee acted on its own to count people at home rather than at the prison where they are incarcerated. It was the first state to address prison gerrymandering through its redistricting committee.

Similarly, Montana is poised to take action against prison gerrymandering. There, members of the redistricting commission recently voted unanimously to take steps toward ending prison gerrymandering in legislative redistricting. They also are asking the state’s governor and congressional delegation to take action to help end the practice and are urging the U.S. Census Bureau to end prison gerrymandering nationwide.

Massachusetts is also included here, even though it does not count people at home. The Massachusetts Redistricting Committee concluded that the state constitution prohibits that solution, instead, Massachusetts is poised to minimize the impact of prison gerrymandering as they did in 2010: by taking prison populations into account when redistricting to ensure that they will not be concentrated in a small number of districts. Massachusetts also passed a joint resolution in 2010 calling on the Census Bureau to provide data that counts incarcerated people at their residence, not the prison. Our analysis of the proposed draft maps shows even further progress in avoiding prison gerrymandering for the 2020 districts.

How many states have enacted legislation addressing prison gerrymandering at any level? 13 states.

In addition to the 11 states that have ended prison gerrymandering through legislation at the state level, there are 2 states that have enacted state-level legislation that applies only to local governments.

Michigan’s laws require counties, cities, and towns to exclude people in state prisons who are not residents of the city or county for election purposes. Tennessee, on the other hand, explicitly allows counties to exclude people in correctional institutions who cannot register in the county as voters, but does not require it.

How many states have solved prison gerrymandering during state-level redistricting? 12 states.

Here, Illinois and Pennsylvania are included, but not Massachusetts or Montana. While Massachusetts may avoid or mitigate prison gerrymandering by taking prison populations into consideration, it does not directly solve the problem. Regardless, neither Massachusetts nor Montana is included here because the redistricting processes in those states are still ongoing.

How many states have passed legislation ending prison gerrymandering at the state level? 11 states.

This includes all states that have passed or enacted legislation to end prison gerrymandering, and where that language is mandatory, meaning that redistricting must exclude prison populations or count them at home. These 11 states are California, Colorado, Connecticut, Delaware, Illinois, Maryland, Nevada, New Jersey, New York, Virginia, and Washington. All of these states are included in the above categories.

How many states will not prison gerrymander in their state districts in the 2020 redistricting cycle? 11 states, so far.

Eleven states will not use prison populations to pad political districts this cycle. Pennsylvania is included here because its redistricting committee acted on its own to count people at home for the 2020 redistricting cycle. However, Illinois is excluded because that legislation is not effective until 2025, in time for the 2030 redistricting cycle. Neither Massachusetts nor Montana are included here; while we expect both states to avoid prison gerrymandering, neither has formally finalized their plans yet.

So, how many states have ended prison gerrymandering? The answer is somewhere between 11 and 16 states, depending on how complete and futureproof their solutions are. On top of that, more than 200 impacted local governments, including counties, cities, towns, and school boards, have also acted to end prison gerrymandering. By comparison, in the 2010 cycle, only 4 states—New York, Maryland, Delaware, and California—had passed legislation and only 2—New York and Maryland—had implemented it. But as long as the Census Bureau continues to count incarcerated people in the wrong place, any state-based solution is a stop-gap measure. While the different approaches that states have taken may be important to know about, these differences should not obfuscate the larger trend towards ending prison gerrymandering.

For detailed information on the different types of solutions to prison gerrymandering, please see our solutions page and our legislation quick-reference chart.

One important action can help end local prison gerrymandering in Wisconsin

A confusing and outdated attorney general opinion has forced Wisconsin local governments into prison gerrymandering, but there is still time to fix this before districts are drawn for the next decade.

by Mike Wessler, October 26, 2021

Small, rural cities and counties are particularly susceptible to the impacts of prison gerrymandering. Low populations and a prison building boom have combined to distort local governance and representation in unanticipated ways.

Few places exemplify this problem as vividly as Wisconsin. Take Adams County, which is north of Madison, for example. After it redrew its lines in response to the 2010 census, this community had a district where incarcerated people made up 62.5% of its population. That means 38 residents here have the same political representation as 100 residents in any other district without a prison. It’s even worse in Waupun, where people incarcerated there make up 75.5% of a district, meaning every 25 residents in this district have the same political clout as 100 residents in other parts of the city.

However, no part of the state feels the distorting local impacts of prison gerrymandering quite like Juneau County. After the 2010 census, as the county looked to redraw its political lines, each district needed to have a population of roughly 1,200 residents to ensure equal representation. However, a new massive prison built recently in the county complicated their efforts to draw fair districts. The prison was so big that if leaders included it in a district, it would mean that twenty residents in that district would have as much political representation as 100 residents in districts without a prison.

John Wenum, a longtime county supervisor who oversaw the county’s redistricting efforts in 2011, recently explained to the Milwaukee Journal Sentinel, “(The incarcerated people) weren’t residents in the normal sense… it actually skewed things in some very significant ways.”

Leaders in Juneau County recognized this was a problem and wanted to fix it, so they sought guidance from the state on how to do that, but were told their hands were tied. They learned an outdated and confusing 1981 opinion from the state’s attorney general directs local governments to draw new district lines without excluding incarcerated people. It requires local governments to take part in prison gerrymandering, even though they didn’t want to. In the absence of other legislative or regulatory guidance, attorney general opinions hold significant legal weight, so Wenum and other leaders felt they had no choice. He told the Journal Sentinel, “The attitude here was ‘We’re not going to rock the boat, we’ll go with the flow.'”

The bad news is this opinion meant that for the last decade, some residents of the county have had considerably more say in the actions of their county government than their neighbors.

But the good news is state and local leaders in Wisconsin still have the opportunity to fix this problem for the next decade.

Attorney general opinions are powerful, but like local district lines, they are not set in stone. Wisconsin’s current attorney general, Josh Kaul, can issue a new legal opinion that updates the outmoded legal reasoning from 1981 and makes it clear that local governments can address prison gerrymandering, and there are plenty of reasons for him to do so.

In recent years, more than a dozen states have taken meaningful actions to end this practice, more than 200 local governments have done so, too. Federal courts have ruled against prison gerrymandering. Even the Census Bureau has recognized the validity of efforts to fix this problem and taken steps to make it easier for governments to exclude or reallocate prison populations when drawing new district lines.

As we speak, cities and counties across the country are beginning the process of redrawing their political districts for the next decade. If Attorney General Kaul takes action soon to issue a new opinion, he can help Wisconsin local governments avoid being stuck with another decade of districts distorted by prison gerrymandering.