A record number of city councils and county commissions tackled prison gerrymandering after the 2020 Census

While the Census Bureau dawdles, local governments continue to address prison gerrymandering in their own backyard, despite limitations.

by Aleks Kajstura, July 30, 2024

Because of their relatively small size, city and county governments often experience the most distortive impacts of prison gerrymandering. When drawing districts in these communities, a single prison can easily account for an entire city council or county commission district, making it impossible for officials to draw fair districts. So it should come as no surprise that, while state government efforts to address the practice receive most of the attention, the movement to end prison gerrymandering started and has been most successful at the local government level, in mostly small, rural, conservative cities and counties. The 2020 redistricting cycle continued this pattern.

Prison gerrymandering is a problem created because the Census Bureau incorrectly counts incarcerated people as residents of their prison cells rather than their home communities. As a result, when states and local governments use Census data to draw new political boundaries, they inadvertently give residents of districts with prisons greater political clout than all other residents. Progress in addressing this problem has been so swift in recent years that the National Conference of State Legislatures recently called the movement to end prison gerrymandering “the fastest-growing trend in redistricting.”

The distortions caused by prison gerrymandering have real-world implications in these communities. It gives some residents a louder voice in the political process, which means local government often prioritizes the issues they want addressed — whether it be deciding which potholes get filled, where to expand sewer services, or which parks to improve — over the needs of residents who live in all other parts of the town or county.

Hundreds of local governments ended prison gerrymandering on their own, with still new ones joining their ranks this decade

In addition to the hundreds of cities and counties that avoided prison gerrymandering after the 2000 and 2010 Censuses (decades when zero and two states, respectively, tackled the issue), we identified an additional 21 local governments¹ scattered across 10 states that addressed the problem for the first time after the 2020 Census.²

It is important to note that this does not represent the complete list of communities that addressed prison gerrymandering; it is a list of places we identified that have done so for the first time this decade — and an incomplete list at that. That’s because many of the laws passed in recent years ending prison gerrymandering in state legislative districts also apply to city and county districts. For example, California’s law, which ended the practice, applies to local governments, too, meaning the communities containing the 34 state prisons and 114 local jails also avoided the practice. As a result, our analysis certainly underrepresents the number of local governments that no longer take part in prison gerrymandering.

Local governments got creative to avoid prison gerrymandering

To avoid prison gerrymandering, communities found creative solutions to overcome the Census Bureau’s flawed counting methods. Regardless of which method they employ, they all led to the same result: districts more representative of the community’s actual population.

There are several common ways local governments avoided prison gerrymandering:

• Adjusting their redistricting data to remove the out-of-town population counted at the prison;
• “Overpopulating” the district with the prison so that it contains the same number of true residents as every other district in the city/county;
• Cutting holes in the maps around the prison to exclude the prison population altogether;
• Trying to split prison facilities across multiple districts to even out the impact.

In addition, a handful of communities avoid prison gerrymandering by forgoing redistricting altogether, a particularly common practice when a new prison has been built in the area since it last drew new district lines. Communities can maintain equal representation without redistricting if their population outside of the prison has not changed. We’ve discovered a number of places that have chosen not to redistrict because the only significant change in the total Census population is the correctional population.

It is important to remember, though, even when local governments can solve their own prison gerrymandering problems, their jurisdiction ends at their city or county line. While they can ensure that prison isn’t included in their redistricting data, they can’t actually count incarcerated people in their home communities, meaning those people often aren’t included anywhere for redistricting purposes.

Some local governments face unnecessary obstacles

Even as more governments take on the task of ending prison gerrymandering in their local districts, some face arcane state rules that turn these simple reforms into complex mazes.

In Wisconsin, for example, leaders in Juneau County recognized prison gerrymandering 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 attorney general’s opinion directed 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. Wisconsin’s attorney general can and should issue a new opinion that gives local governments the freedom to finally fix this problem, but until he does, their hands are tied.

Rural municipal and county districts still suffer from the largest impact

Despite this progress, there are still some communities that face huge impacts of prison gerrymandering.

Local governments’ efforts to end prison gerrymandering are sometimes stymied by state governments, such as in Wisconsin. But even when state governments reverse course to support avoiding prison gerrymandering, some counties stay adrift on their previous heading. For example, since 2016, Tennessee has explicitly allowed (Tenn. Code Ann. S 5-1-111) counties to deviate from the Census population to avoid prison gerrymandering. Since then three counties (Hardeman County, Johnson County, Morgan County) that had engaged in prison gerrymandering have stopped doing so. Unfortunately, most counties impacted by prison gerrymandering in the state continue to use unadjusted Census data for redistricting and, as a result, draw some of the most unequal districts in the country.

As a result, Tennessee, along with Wisconsin — which, as we explained above, prohibits local governments from ending prison gerrymandering — account for six out of the eight cities or counties in the country where correctional facilities make up at least half of local government district

Rural residents would benefit from the Census Bureau solving the problem

Despite the progress made in recent years to address the problem, residents of rural communities continue to be disproportionately harmed by prison gerrymandering and stand to uniquely benefit if the Census Bureau were to solve the problem.

There are three reasons for this:

1. As we explained in this briefing, because of their small size, rural cities and towns that contain prisons often have their local government districts extremely distorted by prison populations.
2. Rural state governments have been slower to adopt statewide reforms to address prison gerrymandering. As a result, our analysis earlier this year found most of the worst state legislative prison gerrymanders are located in rural areas. This analysis also shows the issue defies many preconceived notions about the partisan impact of the problem, with Democrats controlling six of the most gerrymandered districts, while Republicans control four.
3. Mass incarceration is no longer just a problem in urban areas. Our analysis of where incarcerated people come from found that rural areas often have the highest incarceration rates in their state. These increasing incarceration rates mean that while some rural communities see their political boundaries dramatically distorted by prison gerrymandering, others lose political clout because of the problem.

If, in 2030, the Census Bureau chose to count incarcerated people in their home communities instead of in prison and jail cells, all three of these problems would be solved for rural communities. This change would save these communities time and money, ensure they didn’t lose political clout to prison gerrymandering, and help communities that contain prisons create local government boundaries that accurately reflect their true population.

Looking toward 2030

Roughly half of all U.S. residents now live in a city, county, or state that has ended prison gerrymandering. Even as more local governments and states address the issue, they can only do so much. Prison gerrymandering is a national problem that crosses jurisdictional boundaries. No city, county, or state can completely fix this issue on its own. Only the Census Bureau can fully solve this problem nationwide. As it begins to plan the 2030 count, it should finally listen to the growing consensus among state and local governments and end prison gerrymandering across the country.

Grab our one-pager about this issue at https://www.prisonersofthecensus.org/factsheets/national/local_impact.pdf

2030 Census Advisory Committee flags prison gerrymandering issues for the Census Bureau

2030 Census Advisory Committee's inaugural meeting ended in recommendations that future agenda include discussions of the Census Bureau's approach to counting incarcerated people in the 2030 Census.

by Aleks Kajstura, July 29, 2024

On Friday the 2030 Census Advisory Committee held their inaugural meeting and voted to put prison gerrymandering on its agenda. (That’s actually more exciting than it sounds.) The recommendation to discuss the topic in depth was both in reaction to a public comment submitted to the Committee by the Leadership Conference on Civil and Human Rights on behalf of its prison gerrymandering working group, as well as Committee members’ own expertise identifying prison gerrymandering as an issue that needs to be addressed for the 2030 Census.

Prison gerrymandering is a problem created because the Census Bureau incorrectly counts incarcerated people as residents of their prison cells rather than their home communities. As a result, when states use Census data to draw new state or local districts, they inadvertently give residents of districts with prisons greater political clout than all other state residents. The Census Bureau has a persistent undercount of Black and Latino communities — communities that have also historically been hardest hit by mass incarceration — meaning that counting incarcerated people as if they resided at facilities far from home compounds the Bureau’s undercounts of their home communities.

The topics of discussion for the Committee’s first meeting were largely (and procedurally) limited to on hard-to-count and historically undercounted populations, but committee members Jeri Green (National Urban League’s 2020 Census Black Roundtable) and Ben Williams (National Conference of State Legislatures) requested that the committee address two issues related to prison gerrymandering at a future meeting:

1. The Census Bureau’s residence criteria for incarcerated people, which is based on an outdated interpretation of the Bureau’s “residence rule”, and means that people are counted as if they were residents of a correctional facility.
2. The new methods of privacy protections (“disclosure avoidance”) that make it harder for states to adjust their own redistricting data to count people at home.

The 2030 Census Advisory Committee is charged with “advis[ing] the Census Bureau in conducting an accurate decennial census.” And it is in that role that it recommended that the “a future committee meeting include a discussion on residence criteria for those who are incarcerated. … [And] that there be a future discussion regarding the impact of disclosure avoidance policies on the 2030 Census.” These issues accounted for two out of the three topics recommended for discussion by the Committee.

The 2030 Census Advisory Committee operates in an advisory capacity to the Census Bureau, and as such their focus on prison gerrymandering sends a strong message to the Census Bureau that it must consider how to count incarcerated people at home in the 2030 Census.