What are states saying about their experience addressing prison gerrymandering?

Redistricting reports and letters provide insights into the challenges states faced, and show why Census Bureau action is necessary.

by Aleks Kajstura, February 24, 2023

After more than two years and countless hours of work, the process of redrawing legislative district lines after the 2020 Census is now over. From data delays to pandemic-related challenges, it was a redistricting cycle like no other. One of the most significant positive developments, though, was the sheer number of states and local governments that took action to end prison gerrymandering — a problem created by the Census Bureau counting incarcerated people as residents of prison cells rather than their home communities. When states use those Census counts to draw legislative districts, they distort political representation by unfairly giving people who live closest to prisons a louder voice in government, to the detriment of everyone else.

During the 2010 redistricting cycle, only two states — Maryland and New York — adjusted their redistricting data to count incarcerated people at home. This cycle, 13 states counted incarcerated people at home.¹ When combined with the more than 200 cities and counties that have also addressed the problem, roughly half the country now lives in a place that has taken action to end prison gerrymandering.

Traditionally, after the end of a redistricting process, states publish reports that explain their method, highlight challenges they faced, and identify areas for improvement during the next cycle. Unfortunately, fewer states produced these reports after completing the 2020 cycle, perhaps the result of the pandemic squeezing the time and resources they had available. However, several states that published reports highlighted the issue of prison gerrymandering. These reports offer important insights into their experiences and show why the Census Bureau must change its policies before the 2030 cycle.

California

In their report, members of California’s staunchly independent Citizens Redistricting Commission note that they faced a common but serious problem in their effort to end prison gerrymandering: a lack of cooperation from the Federal Bureau of Prisons (BOP). They explained in their final report:

“The Commission also sought the last known address information for those in federal custody, but was unable to obtain the necessary information to complete the task of reallocating that population.”

California’s inability to get addresses for people incarcerated in federal facilities is not unique. BOP has stubbornly and consistently refused to share that data with any state. With 102 federal prisons in the country locking up more than 200,000 people, this refusal to cooperate with the home states of people in its custody is indefensible and creates a limit to state solutions. It’s a critical gap that can only be closed through action by federal officials, most efficiently by the Census Bureau.

Pennsylvania

Pennsylvania’s report, which was authored by the chair of its redistricting commission, devoted 10 pages to the issue of prison gerrymandering, by far the most exhaustive account in any state. In it, he touched on two areas that are a commonality across the states addressing prison gerrymandering.

First, when discussing the need to collect and process data in a timely manner, he wrote:

“My practical concern regarding data availability was heightened by the pressures tied to our constitutional deadlines, deadlines relating to the upcoming primary election schedule, and the already-dramatically delayed delivery of census data. However, after a number of interactions with the Department of Corrections, the Penn State Data Center confirmed that creating a population dataset incorporating Leader McClinton’s resolution would only result in a comparatively short delay, and that proved to be the case.”

The chair’s description of these challenges shows the fine line that states must walk if they want to adjust Census data to end prison gerrymandering. To make it work, they need the time, the will, the know-how, and the data. Fortunately, Pennsylvania had all of these things and was able to tackle this issue. But, with the consensus among states becoming clearer on this issue by the day, it raises important questions: If the Census Bureau has the ability and responsibility to provide data to the states in a usable manner, why doesn’t it? Why does it force them to jump through these hoops that take time, money, and expertise?

That’s not the only issue the Pennsylvania commission chair discussed. He also explained that one of his primary motivators for taking on this reform was the need to count people in a way that aligns with state law, noting:

“I further agreed that reallocating prisoners would be consistent with the Commonwealth’s policy as it relates to inmates and voting. In particular, S 1302 of the Voter Registration Act states, “Except as otherwise provided in this subsection, no individual who is confined in a penal institution shall be deemed a resident of the election district where the institution is located. The individual shall be deemed to reside where the individual was last registered before being confined to the penal institution, or, if there was no registration prior to confinement, the individual shall be deemed to reside at the last known address prior to confinement.” 25 Pa.C.S. S 1302(a)(3). That language can be viewed as a strong and longstanding expression of legislative policy, and it would be consistent with that policy to count prisoners for redistricting purposes in the same place they could vote, if able.”

Again, this is not a problem unique to Pennsylvania; most states have similar residence laws that clarify that incarceration does not change a person’s residence. Ending prison gerrymandering ensures that redistricting data aligns with the common sense notion of where someone considers home and with legal definitions of residency.

Montana

Montana just finished its redistricting effort a few weeks ago,so it has not yet published a report on its process (and we’re not sure if it will). However, the state’s redistricting commission made its thoughts clear when it sent a letter to the Census Bureau requesting that it provide more useful redistricting data by counting incarcerated people at home in future Censuses, explaining:

“One of the challenges we face is how to account for incarcerated populations as we draw those lines. While the U.S. Census Bureau (Bureau) counts state and federal prisoners as residents of the correctional facility in which they reside on Census Day, many Montanans would prefer that these prisoners be counted as residents of the places in which they resided prior to incarceration. We are currently exploring methods that our state could use to gather that residential information and adjust the P. L. 94-171 data that we receive from the Bureau. However, we encourage the Bureau to update its concept of “usual residence” for future census operations. Specifically, we request that the Bureau count state and federal prisoners at their home addresses rather than at correctional facilities. In addition, we ask that the Bureau allow prisoners to submit race, ethnicity, and address data through forms completed by the prisoners themselves when possible. These changes would create more complete, useful redistricting data for policymakers and line drawers in the future.”

Montana’s experience is a good example of how the Census’ current policy that puts the burden of adjusting the data on the states is not a viable solution. Despite the Commission’s unanimous and bipartisan decision to count incarcerated people at their true homes, the state still struggled to end prison gerrymandering successfully. Ultimately, its ability to address this problem was indirectly made possible by the unexpected COVID pandemic. Travel restrictions meant that funds originally budgeted for that purpose could instead be used to pay for geocoding 1,335 addresses and then adjusting the block populations accordingly in the redistricting data files. If not for COVID-imposed limitations coinciding with redistricting, the state would not have had the funds to cover such a small, simple, and basic expense.

Montana is the second state to formally request that the Census Bureau changes how it counts incarcerated people, joining Massachusetts, which which passed a resolution calling for this change in 2014.

New Mexico

While New Mexico has not yet addressed prison gerrymandering, its Citizen Redistricting Committee spent significant time on the problem and dedicated three pages of its report to the issue, including discussions on its explorations of the home address data available in the state. The Committee found that while they could get address information for most people in state prisons, the data was far more incomplete and difficult to access for people in county jails. Ultimately, rather than taking action on the problem, the Committee recommended: “that the Legislature consider legislation that will address the prison gerrymandering issue and that New Mexico take advantage of the assistance offered by the United States Bureau of Census for addressing the issue.” Although several states succeeded with last-minute efforts to count incarcerated people at home, such success is not guaranteed.

Census Bureau needs to act

States have enough preparations to worry about in the decennial ramp-up to their redistricting efforts; they shouldn’t have to also worry about quickly changing Census Bureau data to make it usable. The Census Bureau needs to provide redistricting data that is ready to use.

The 2020 redistricting cycle may prove to be a turning point in the national campaign to end prison gerrymandering. Over the last twenty years, this issue has gone from being often overlooked to being a primary and bipartisan concern of those tasked with drawing new legislative lines.

The issues states faced when addressing this problem in 2020 are not going away. And, as more and more states agree that counting incarcerated people at their homes creates more fair and equitable representation in government, the need for Census action will become even more pressing. It remains to be seen whether the Bureau will take action to produce data that is actionable and responsive to the needs of states or whether it will continue to force them to dedicate their limited time and resource to make the data usable.